Douglas A. Berman's Recent Articles from LexMonitor

pcoming House Judiciary Committee hearing on crack sentencing

berman.43@osu.edu (Douglas A. Berman) — Wed, 20 May 2009 19:07:24 GMT

As detailed on this official hearing page, the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee has a hearing on crack sentencing scheduled for the morning of Thursday, May 21. The title of the hearing is "Unfairness in Federal Cocaine Sentencing: Is it Time to Crack the 100 to 1 Disparity?" and the witness list suggests that everyone involved will be speaking out aganist the current 100:1 weight ratio that now exists in federal statutory sentencing provisions.

Even though this hearing suggests continuing momentum for change to the current crack/powder status quo, I remain depressingly skeptical that major federal sentencing changes in this area (or others) is imminent. The many political challenges of reducing sentences and the practical challenges of giving retroactive effect to any reduced sentences has thwarted needed reforms for more than a decade. I continue to hope we will soon get past talking the talk in Congress and start walking in the walk with actual legal changes. But, until then, I encourage expectations to remain low even while hope are high for federal sentencing change we can believe in.

Some related recent posts on crack sentencing debates:

Michael Vick now a free man... sort of

berman.43@osu.edu (Douglas A. Berman) — Wed, 20 May 2009 14:47:03 GMT

The latest news on the latest former federal prisoner can be found here at the top of the CNN's news feed: Former Atlanta Falcons quarterback Michael Vick left a federal prison in Leavenworth, Kansas, early Wednesday, according to his publicist...

The latest news on the latest former federal prisoner can be found here at the top of the CNN's news feed:

Former Atlanta Falcons quarterback Michael Vick left a federal prison in Leavenworth, Kansas, early Wednesday, according to his publicist and the Federal Bureau of Prisons. He will serve the last two months of his 23-month sentence in home confinement in Virginia, his publicist Judy Smith said. He is a native of Newport News, Virginia....
He will return to professional football as soon as September if reinstated by the NFL, according to the sports agent who negotiated Vick's 10-year, $140 million contract with the Falcons. Meanwhile, Vick's attorneys have said he will work at a Newport News construction firm following his release, and he has also agreed to participate in a documentary for $600,000....
Vick plans to work with the Humane Society of the United States on anti-dogfighting campaigns, Humane Society President Wayne Pacelle told CNN on Tuesday. Vick will work on programs aimed at preventing youths from getting involved in dogfighting, and also on programs to assist young people who have already been involved in the blood sport.
Pacelle said the Humane Society was approached by Vick's representatives. He said he has traveled to Kansas twice to meet with the former quarterback, and during the second visit, the two discussed how Vick could use his sway over youths to discourage them from involvement in dogfighting, as well as help those who were apprehended in connection with it.

Some related recent posts:

"Longtime fugitive mom freed from prison"

berman.43@osu.edu (Douglas A. Berman) — Wed, 20 May 2009 13:19:08 GMT

The title of this post is the headline of this article that provides an update on a high-profile case that prompted interesting sentencing debates when it first made news. Here are a few details: Susan LeFevre's first prison stretch 33...

The title of this post is the headline of this article that provides an update on a high-profile case that prompted interesting sentencing debates when it first made news. Here are a few details:

Susan LeFevre's first prison stretch 33 years ago was so scary that she decided to escape. Now, more than a year after her capture, the woman who changed her life to become a suburban mom in California is free again — and this time her departure was legal.
"It's been very traumatic. I didn't think I'd make it at times," LeFevre, 54, said of her second term behind bars, describing prison as a "very tragic" place.
She was released Tuesday from the Huron Valley prison, south of Ann Arbor, and rode away in a car, a more comfortable departure than in 1976 when she climbed a fence at another prison to escape a 10-year sentence for a heroin deal....
A judge in September placed her on probation for the escape. Separately, the Michigan Parole Board voted in January to release her from prison on the drug sentence, saying she had led a productive and crime-free life in California. But the board made her wait until Tuesday because of misconduct in prison. Her record has been clean the past four months....
In prison, humor and conversation among inmates are a cover for a harsh reality, LeFevre said. "There is a real suffering from being detached from the world. I hope there's a lot more done for rehabilitation," she said....
In 1976, LeFevre had served about 14 months of a 10-year sentence for a heroin sale when she escaped. She expressed regret to a Wayne County judge last fall and said it was a "terrible thing to do." LeFevre said she was just 21 and frightened by other inmates. When she returns to California, LeFevre will be on parole for the drug crime until May 2013. She can't drink alcohol, possess firearms or associate with felons.

One of many notable aspects of this story is that Susan LeFevre is often described a "fugitive mom" rather than a fugitive drug dealer or esacped prisoner. And she only got to be a mom because she was a fugitive after her prison escape. Though perhaps we should not be troubled by this high-profile example of gender bias, I think it unlikely that a man who acted just like LeFevre would now be viewed in such forgiving ways.

Prior posts on LeFevre case:

Will new US Attorneys have a big impact on federal sentencing law and policy?

berman.43@osu.edu (Douglas A. Berman) — Wed, 20 May 2009 13:02:36 GMT

The new Administration's approach to crack sentencing shows how new personnel in Main Justice is already impact some parts of federal sentencing law and policy. But, on a case-by-case basis, who serves in local US Attorney offices may have an even bigger long-term impact on the shape and direction of the federal criminal justice system. Thus, sentencing fans should be very interested in this new article from The National Law Journal, which is headlined the "U.S. Attorney Picks Are Under Way: Some Senate Republicans want a say in who gets selected." Here are a few of the basics:

President Barack Obama began filling the nation's 93 U.S. Attorney positions on May 15, announcing his first wave of six nominees. The move touched off a closely guarded process freighted with symbolism in the wake of the Bush administration firings scandal.
President George W. Bush and President Bill Clinton made their first U.S. Attorney nominations days before Congress' summer recess in August. Each nominated more than two dozen in the first round.
U.S. Attorney nominations pose a potential hurdle for Obama, as he reconciles the nature of these plum political posts with his pledge of bipartisanship and Attorney General Eric Holder Jr.'s promise to rid the department of partisan meddling. Some Republicans have already signaled their intention to block candidates if they're left out of the process, including Sen. John Cornyn, R-Texas, whose membership on the Senate Judiciary Committee gives him an outsized role in nominations....
On May 15, Obama said he intended to nominate Preet Bharara for the Southern District of New York, Tristram Coffin for Vermont, Jenny Durkan for the Western District of Washington, Paul Fishman for New Jersey, John Kacavas for New Hampshire and Joyce Vance for the Northern District of Alabama.
Though just six have been named so far, about 20 candidates have come to Washington for interviews at the Justice Department in the past two months, according to a source familiar with the process. The meetings are one of the final steps before nomination.
Obama is announcing his picks for U.S. Attorneys in waves, replacing holdover Bush prosecutors once his nominees are confirmed or appointed on an interim basis while awaiting confirmation, Justice Department officials said. That breaks sharply with the system adopted by President Bill Clinton, who sacked nearly all holdover U.S. Attorneys at the start of his first term. The move angered many career Justice Department lawyers who say the turnover disrupted their work and left some prosecutors out on the street.

Some related posts:

Executions go forward with apologies (and without a hitch?) in Missouri and Texas

berman.43@osu.edu (Douglas A. Berman) — Wed, 20 May 2009 12:05:14 GMT

As detailed in this AP story, two murderers "spent some of their last moments apologizing for their crimes before they were put to death six hours apart in Texas and Missouri, which executed its first convict in four years." Here...

In a lengthy, written final statement, Dennis Skillicorn expressed sorrow for the 1994 murder of a Richard Drummond, who stopped to offer help after a car carrying Skillicorn and two other men stalled along Interstate 70....

Early Wednesday, Skillicorn mouthed words to his wife and two spiritual advisers as the first drug was administered to him. Soon, he appeared unconscious. He was pronounced dead at 12:34 a.m., 11 minutes after the procedure began....

In Huntsville, Texas, meanwhile, Michael Lynn Riley apologized repeatedly in the moments before he received lethal injection Tuesday evening and became the 15th condemned prisoner executed in the nation's busiest death penalty state....

Marcus Taylor, the now-retired Wood County district attorney who prosecuted Riley and sought the death penalty, witnessed the execution. "For those people that may think death penalty cases don't get proper examination, this is certainly evidence that's not true," Taylor said. Riley had been locked up longer than his 23-year-old murder victim lived.

While he didn't volunteer for execution, Riley had asked friends to not pray that he receive a reprieve, and he repeated that sentiment to friends who witnessed his death. "I told you years ago that I was ready," he said. Eight minutes later, after urging his fellow death row inmates to "stay strong" and that "Fleetwood is out of here," using his death row nickname, Riley was pronounced dead.

I believe that these executions bring the US total for executions to 29 in the year 2009. Also, I believe there has now been a total of 66 executions since the Supreme Court upheld the constitutionality of standard lethal injection protocols in Baze.

Though the Baze litigation did not ultimately seem to achieve too much, I cannot recall hearing a single report of a botched lethal injection protocol since the ruling. These two recent executions, like all the others since the Baze execution moratorium ended, seemed to go off without a hitch.

Thus, I suppose the defendants and defense attorneys behind all the lethal injection litigation should take pride in their success. These folks often asserted that their goal was just to make sure executions were done without excessive pain or other problems. And it would seem that every execution since Baze has gone forward without excessive pain or other problems.

"Former FAMU student gets 22-month prison sentence in grade-changing case"

berman.43@osu.edu (Douglas A. Berman) — Tue, 19 May 2009 18:59:11 GMT

The title of this post is the headline of this notable federal sentencing story from Florida. Here are a few more details: Former Florida A&M student Lawrence Secrease was sentenced Monday to 22 months in prison and three years' supervised...

The title of this post is the headline of this notable federal sentencing story from Florida. Here are a few more details:

Former Florida A&M student Lawrence Secrease was sentenced Monday to 22 months in prison and three years' supervised release in the case involving unauthorized grade changes at the university, according to the U.S. Attorney's Office.
Secrease was the second defendant to be sentenced on charges of aggravated identity theft, unauthorized access of a protected computer, conspiracy to commit wire fraud and a substantive count of unauthorized access of a computer. He pleaded guilty on all charges....
The three co-defendants caused the grades of about 90 FAMU students to be changed, affecting 650 grades overall, according to the U.S. Attorney's Office. About 114 grade changes were failing "F" grades changed to "A" grades, said Karen Rhew, spokeswoman for the U.S. Attorney's Office. The three men also caused residency status of certain students to be changed from out-of-state to in-state, reducing the amount of tuition owed by thousands of dollars.

Will President Obama soon have to confront the Troy Davis case?

berman.43@osu.edu (Douglas A. Berman) — Tue, 19 May 2009 18:02:33 GMT

This blog post from a UK paper, titled "Why President Obama should have Georgia on his mind," flags an issue I have been thinking about recently. Here is how the post begins: Unlike presidents Bush and Clinton, there's one potentially...

This blog post from a UK paper, titled "Why President Obama should have Georgia on his mind," flags an issue I have been thinking about recently. Here is how the post begins:

Unlike presidents Bush and Clinton, there's one potentially controversial issue in the United States that has yet to seriously trouble President Obama -- the death penalty. That could be about to change.
A death row prisoner with a particularly strong claim that he was wrongly convicted could be just weeks away from execution. Would the president stand by and let that happen? It might be difficult for him if he did. Here's why.
The case in question is that of Troy Davis, a 40-year-old man who has been on death row in the state of Georgia since 1991. On Saturday his "stay" of execution was lifted leaving it open to state officials to set an execution date. It won't be his first. Last September he was just two hours from a lethal injection until, at the eleventh (tenth?) hour, the Supreme Court stepped in and the execution was halted.

Should Conrad Black (and Jeff Skilling and others) be set free pending SCOTUS action?

berman.43@osu.edu (Douglas A. Berman) — Tue, 19 May 2009 17:27:41 GMT

Though the Supreme Court's cert grant yesterday in the criminal appeal of media mogul Conrad Black raises mostly white-collar substantive criminal law issues (as noted by bloggers here and here), I am wondering if and how this should impact the...

As noted here, Black was denied bail pending appeal by the Seventh Circuit last year and has now served more that a year in prison. Though the SCOTUS cert grant does not ensure Black's convictions will be reversed, it does greatly increase the chances he could be freed eventually. However, given the standard (slow) pace of SCOTUS action, Black's case won't be argued to SCOTUS until the fall and a ruling seems unlikely before 2010. In light of the cert grant, it seem to me that Conrad Black now has a much stronger argument that he should be able to be free rather than locked up while his (suspect?) convictions are reviewed.

Moreover, as detailed in this Houston Chronicle article, the fate of at least one other high-profile white-collar defendant also could be impacted by the now-pending Black SCOTUS case:

The U.S. Supreme Court’s decision today to hear the appeal of former media mogul Conrad Black could bode well for imprisoned former Enron CEO Jeff Skilling. “Skilling’s crossing his fingers,” said Wayne State University Law School professor Peter Henning, who is familiar with both cases. “This is Skilling’s best hope.”
Last week Skilling appealed to the high court clear up questions about a prosecution theory of guilt that backfired in other Enron-related cases, but was embraced by appellate judges in his case. The Black case ... involves the same theory, so the outcome of his appeal likely means the 5th U.S. Circuit Court of Appeals panel that affirmed Skilling’s 19 convictions will have to take another look....
“In effect, he’s in a bit of limbo now,” Henning said. “Regardless of what happens in Black, his case will get remanded for reconsideration to the 5th Circuit.” Skilling’s case still has a chance to be heard by the Supreme Court, but Henning said it’s unlikely after a case involving such similar issues has been accepted.
Daniel Petrocelli, Skilling’s lead lawyer, today called the Black case’s acceptance for review “a very significant development, and not just for Jeff Skilling’s case, but frankly for our entire justice system.”

Does Skilling likewise now have a much stronger argument for release pending appeal, especially given that it could likely be a full two years before SCOTUS decides Black and then the Fifth Circuit decides what the Black ruling might mean for Skilling's case? And are there lots of other similarly situated white-collar defendants serving time for honest services fraud that should now be going back to lower courts citing the Black cert grant to try to get back home while appeals are on-going?

NFL update: More on Vick's release ... while wondering about Plaxico's fate

berman.43@osu.edu (Douglas A. Berman) — Tue, 19 May 2009 16:48:27 GMT

For all you reentry fans, here is the latest news from ESPN about Michael Vick's imminent release from federal prison: Concerned about Michael Vick's security, the federal bureau of prisons remains secretive about exactly when he will leave the federal...

For all you reentry fans, here is the latest news from ESPN about Michael Vick's imminent release from federal prison:

Concerned about Michael Vick's security, the federal bureau of prisons remains secretive about exactly when he will leave the federal penitentiary after serving 23 months for a dogfighting conspiracy. The suspended NFL quarterback's release could come under the cloak of darkness, sources close to Vick told ESPN's Kelly Naqi. Paperwork is being processed Tuesday and Vick is expected to leave prison sometime Wednesday.
Upon his release, Vick will travel to his home in Hampton, Va., about a 19-hour trip if he chooses to drive. He will not be escorted by federal authorities and must report into the probation office in Norfolk on Friday, at which time he'll begin serving home confinement. For two months, the suspended NFL star will be largely confined to his home and will wear an electronic monitor that allows federal probation officials to track his movements. He is expected to be released from federal custody on July 20....
Vick will be allowed to go to his full-time construction job and will likely be allowed about five hours a week for other court-approved activities, according to Ed Bales, managing director of Federal Prison Consultants, an inmate rehabilitation advocacy group.
Permissible activities for inmates on home confinement typically include things like medical appointments, religious obligations and meetings with probation officials. No dinners out. No chilling at a friend's house. And definitely no bars. "He's going to be pretty much read the riot act: 'If we catch you in one situation like that, it's back to you know where,' " Bales said.
One restriction tailored specifically for Vick for his three years of supervised probation: He can never again own a dog. U.S. District Judge Henry Hudson already made that decision when he sentenced Vick.

I did not realize a condition of Vick's supervised release prohibited dog ownership. I guess Vick can have a cat, and I sure hope he does not get drawn into the ugly clandestine world of cat juggling.

Meanwhile, while looking for Vick news, I came across this articlenoting that the Chicago Bears are talking about signing Plaxico Burress, who apparently "has a June 15 hearing stemming from felony gun charges." Given that New York state prosecutors seem disinclined to let Burress plead to anything that does not include at least a year in prison, I find it strange (and perhaps telling) that NFL teams and reporters still do not seem to fully realize that Burress could end up spending as much if not more time behind bars as Vick has simply for possessing a gun in the wrong place and the wrong time.

More on my personal favorite surprise SCOTUS short-lister

berman.43@osu.edu (Douglas A. Berman) — Tue, 19 May 2009 14:23:17 GMT

As noted in this prior post, I was surprised and pleased to hear my co-author and pal (and sentencing guru) Nora Demleitner, the current Dean at Hofstra University School of Law, on an NPR segment suggesting novel SCOTUS short-list names. Now I am also pleased that Newsday has this follow-up story about Nora's sudden status as a SCOTUS short-lister:

Much to her surprise, the dean of Hofstra University Law School woke Sunday morning to find she had just been thrust into the national political conversation as a possible contender for a seat on the United States Supreme Court.
National Public Radio speculated that Dean Nora V. Demleitner, 42, of Port Washington, was among those being considered by President Barack Obama for a job on the nation's highest court. "I was very surprised in that NPR mentioned me," Demleitner said in an interview Monday. "It's an incredible honor to be mentioned."
But the speculative allusion by legal affairs reporter Nina Totenberg may be as far as it goes. Demleitner said she has not been contacted by anyone from the Obama administration. The staff of Judiciary Committee member Sen. Charles Schumer (D-N.Y.) declined to comment on Demleitner's possible nomination to replace U.S. Supreme Court Justice David Souter, who is retiring in June when the court's term ends.
Brian Griffin, former president of the Criminal Courts Bar Association of Nassau County, said he read about Demleitner's potential candidacy in the newspaper. "I wasn't aware of her until she started appearing on the radar in the last few days," Griffin said. "It's comforting to know that someone with serious understanding of criminal law — the serious consequences and permanency of any conviction — is being considered for the Supreme Court."
Demleitner said she was baffled about how her name got mentioned. "Like everybody else, I know a lot of people who have connections, but I could not begin to imagine who would have done it," Demleitner said of a possible nomination....
Professor Julian Ku, who teaches constitutional and international law at Hofstra, said Demleitner has some unusual qualifications. "What makes her different is that her work is not focused primarily on U.S. laws. She's looking at U.S. laws in the context of the global community," said Ku. "There is no one like her on the court. It would be totally an out-of-the-box pick."
In January 2008, Demleitner became the first woman and the youngest person to assume the dean's post in the law school's 39-year history, according to Sun Min, a spokeswoman for the law school. Demleitner spent most of her career in academia, teaching in Germany, Italy, Michigan, Texas, Miami and at Hofstra. She has written extensively on the disfranchisement of convicted felons.

For various reasons, I would be (wonderfully) shocked if Nora was selected for SCOTUS this time around. But I am intrigued (and hopeful) about the possibility that her new short-list status might foreshadow the possibility that she be named, say, to the US Sentencing Commission or to the Second or DC Circuit or to any other important national position that could profit greatly from having someone with Nora's diverse background and keen insights on an array of issues.

Some recent related posts:

Notable Fifth Circuit ruling about reach/impact of Kimbrough

berman.43@osu.edu (Douglas A. Berman) — Tue, 19 May 2009 14:05:38 GMT

The Fifth Circuit issued a notable sentencing ruling yesterday in US v. Simmons, No. 08-60755 (5th Cir. May 18, 2009) (available here). This case has bounced up and down as the district court and the Fifth Circuit try to figure...

The Fifth Circuit issued a notable sentencing ruling yesterday in US v. Simmons, No. 08-60755 (5th Cir. May 18, 2009) (available here). This case has bounced up and down as the district court and the Fifth Circuit try to figure out post-Booker sentencing rules. Here is the latest insights from the Fifth Circuit about Kimbrough and related matters:

Kimbrough does not limit the relevance of a district court’s policy disagreement with the Guidelines to the situations such as the cocaine disparity and whatever might be considered similar....
Whatever else in Kimbrough might require further case development, it is evident that the Supreme Court held that a district court’s policy disagreement with the Guidelines is not an automatic ground for reversal ... [though it called for] a more intense review when the district court declares a properly calculated sentencing range to be inconsistent with the Guidelines’ policy factors even for an ordinary case. Kimbrough, 128 S. Ct. at 575. If the concern instead is about the suitability of the sentence under the special conditions of a particular offender, the Court did not state that “closer review” is needed.
Therefore, the district court’s disagreement with the policy statement concerning age as applied to this defendant’s case is relevant to the sentencing decision. Consideration of a policy statement is among the factors under Section 3553(a). Disagreement with the policy should be considered along with other factors. See id. After deciding that a sentence outside the Guidelines range is justified, the court “must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of variance.” Gall, 126 S. Ct. at 597. Once those thought processes lead to a decision on the proper sentence, the court must explain itself in such as way as to permit “meaningful appellate review” and satisfy the need that sentencing fairness be perceived. Id.

Thoughtful new district court opinion adopting 1:1 crack/powder ratio

berman.43@osu.edu (Douglas A. Berman) — Tue, 19 May 2009 12:02:11 GMT

I am pleased to be able to post a new opinion from a district court that provides a thorough and thoughtful account of why the court has adopted a 1:1 ratio for crack sentence cases. Here is the openning paragraph...

Defendant Demetrius Darnell Gully was before the court on May 14, 2009, for sentencing on his guilty plea, without a plea agreement, to four charges of distributing less than 5 grams of crack cocaine, arising from “controlled buys” in January 2008, after a prior felony drug conviction in 2004. Three of the counts charged that the distributions occurred within 1,000 feet of a public playground or school. This “crack” case raises the following questions: (1) Whether the court has discretion to impose a 1:1 crack-to-powder ratio in sentencing; and (2) whether a 1:1 ratio is appropriate in this case. This written ruling addresses only these questions, although other matters were resolved at defendant Gully’s sentencing hearing....
[I]n this case, the prosecution offered no argument or logical reason why crack cocaine and powder cocaine should be treated differently, on the basis of the controlled substances themselves. Rather, the prosecution reiterated the policy line, which this court rejects, that different treatment of crack and powder is appropriate in this case because of this defendant’s conduct, i.e., that the crack-to-powder ratio is an appropriate proxy for other kinds of harm or criminal conduct perceived to come with crack trafficking. Again, this court believes that the appropriate course is to treat interchangeable forms of cocaine as equivalents, and to enhance punishment when additional criminal effects and use of weapons, for example, are present in a particular case.

Download Gully 1-1 crack sentencing

Yet another different SCOTUS short-list

berman.43@osu.edu (Douglas A. Berman) — Tue, 19 May 2009 11:42:57 GMT

Marcia Coyle has this new piece in The National Law Journal headlined "An Alternative Short List for the High Court: Law professors say whom they would nominate to the U.S. Supreme Court. Are any on the president's radar?" Here is...

Marcia Coyle has this new piece in The National Law Journal headlined "An Alternative Short List for the High Court: Law professors say whom they would nominate to the U.S. Supreme Court. Are any on the president's radar?" Here is how the piece begins:

Is New York Law School's Annette Gordon-Reed, the Pulitzer Prize-winning law professor/historian, on President Obama's Supreme Court "short list"? Or, Alabama lawyer Bryan Stevenson, a MacArthur Foundation "genius" award recipient and tireless advocate on behalf of indigent defendants and prisoners? How about veteran consumer rights champion Alan Morrison and University of Notre Dame Law School Dean Patricia O'Hara?
Probably not. But they appear on the short lists of more than a dozen constitutional law and Supreme Court scholars asked by The National Law Journal to step into Obama's shoes to pick a nominee to succeed retiring Justice David Souter. These scholars, who vary ideologically and geographically, most often recommended four women who are reportedly on Obama's short list, giving the most nods to Pamela Karlan, a leading constitutional law scholar, voting rights authority and founding director of the Stanford Law School's Supreme Court Litigation Clinic.

Some prior posts on SCOTUS personnel:

"Executions Debated as Missouri Plans One"

berman.43@osu.edu (Douglas A. Berman) — Tue, 19 May 2009 11:37:41 GMT

The title of this post is the headline of this article from today's New York Times, which provides an effective primer on the state of death penalty debate in Missouri as the state gears up to execute convicted murderer Dennis...

The title of this post is the headline of this article from today's New York Times, which provides an effective primer on the state of death penalty debate in Missouri as the state gears up to execute convicted murderer Dennis Skillicorn early Wednesday morning. Here are a few excerpts:

Officials in this state are preparing to execute a prisoner for the first time since 2005, when criticisms about the state’s lethal injection method emerged and one doctor who carried out executions acknowledged being dyslexic and sometimes “improvising” when it came to the amounts of chemicals he administered.
That doctor will no longer take part, and a United States Supreme Court ruling last year upheld a lethal injection procedure similar to the one Missouri will use, but some lawmakers, including some prominent Republicans, say they have lingering questions about the state’s system of capital punishment.
The focus of those questions has shifted some, no longer centering on the method of execution but turning toward which prisoners are condemned and which are not, and whether those choices make sense. “I still favor the death penalty, but I just want to make sure we put the right people to death,” said State Representative Bill Deeken, a Republican, explaining why he last week proposed delaying the death penalty for two years more until a study can determine whether it is meted out fairly in this state. “At this point, we just do not know.”...
In the final days of the state legislative session in Jefferson City last week, a death penalty moratorium was rejected, but the House, which Republicans control, passed a provision calling for a commission to study the question.....House leaders say their chamber’s vote sent a signal to Gov. Jay Nixon, a Democrat in his first term, who has yet to issue a decision on Mr. Skillicorn’s request for clemency.
People here are deeply split over Mr. Skillicorn. His supporters say that while he participated in robbing Mr. Drummond and was convicted of murder, another man (now also awaiting execution) was the one who fired the gun that killed Mr. Drummond. They point to Mr. Skillicorn’s work in prison leading a hospice program, editing a magazine for death row inmates, and, in the view of even some prison workers, helping to create a calmer, safer atmosphere behind bars....
But State Representative Bob Nance of Excelsior Springs, the community not far from Kansas City where Mr. Drummond had lived, said Mr. Skillicorn “should hardly be held up as a poster child for what’s wrong with the death penalty.” Mr. Skillicorn was implicated for his involvement in other murders — though never, he says, as the gunman. He was convicted of second-degree murder in a 1979 burglary with accomplices in which a farmer was killed. And in the days after Mr. Drummond’s death, he and his accomplice went on a cross- country spree and, the authorities say, his accomplice shot and killed an Arizona couple. Mr. Skillicorn pleaded guilty to murder in that case.

Interesting deterrence study out of Italy (perhaps providing a basis for more clemencies)

berman.43@osu.edu (Douglas A. Berman) — Tue, 19 May 2009 11:25:51 GMT

This new press release from Science Daily, titled "Potential Criminals Deterred By Longer Sentences," reports on an interesting new published study on deterrence coming from Italy. Here are excerpts from the press release: A new study published in the Journal...

This new press release from Science Daily, titled "Potential Criminals Deterred By Longer Sentences," reports on an interesting new published study on deterrence coming from Italy. Here are excerpts from the press release:

A new study published in the Journal of Political Economy sheds some empirical light on the question of deterrence. Using a recently passed Italian law as a natural experiment, the study found that former prisoners are less likely to return to jail if they expect longer sentences for future crimes....
Passed in 2006, Italy's Collective Clemency Bill presents a unique opportunity to study the deterrent effect of prison sentences, the authors say.... When the clemency bill was passed, it immediately released thousands of prisoners who had three years or less left on their sentences. The remainder of each prisoner's sentence was suspended, but not forgiven. The law stipulated that a former inmate who commits a new crime within five years will have the suspended portion of his sentence reinstated and added to the sentence for the new crime. As a result, a repeat offender can expect extra jail time equal to the suspended portion of his sentence — anywhere from one month to three years.
Using government data, the researchers looked at the recidivism rates of these former inmates for the first seven months after their release. They found that those with longer suspended sentences — and therefore longer expected sentences for new crimes — were less likely to be re-arrested than those with shorter suspended sentences....
The deterrent effect was consistent across age groups, and among men and women, though 95 percent of the sample was male. "This means that a policy a commuting actual sentences in expected sentences significantly reduces recidivism," Dr. Vertova says. "A mass release of prisoners can be effective in reducing their propensity of re-committing crimes if, when a released individual gets convicted of a new crime, his normal sentence is increased by the time that was pardoned because of the early release."
There was one important exception to the deterrent effect, however. Recidivism rates among those whose original crime was more serious were essentially unaffected by the length of their suspended sentence. That finding suggests that "more dangerous inmates are not deterred," the authors write. The researchers also caution that their results only measure deterrence on those who have already served time in jail. "Indeed, it is not clear whether these results can be to individuals who have never received prison treatment."

The full study can be accessed at this link, and here is the paper's official abstract:

The Collective Clemency Bill passed by the Italian Parliament in July 2006 represents a natural experiment to analyze the behavioral response of individuals to an exogenous manipulation of prison sentences. On the basis of a unique data set on the postrelease behavior of former inmates, we find that 1 month less time served in prison commuted into 1 month more in expected sentence for future crimes reduces the probability of recidivism by 0.16 percentage points. From this result we estimate an elasticity of average recidivism with respect to the expected punishment equal to −0.74 for a 7‐month period.

The implications of this interesting study are potentially quite profound, especially at a time when states are struggling with over-crowded prisons and academics are debating "second look" sentencing reforms. This study suggests governments might be able to save money AND reduce the probability of recidivism by granting conditional clemencies to non-violent offenders.

Examining environmental sentences after Booker

berman.43@osu.edu (Douglas A. Berman) — Tue, 19 May 2009 11:11:30 GMT

Professor Michael O'Hear has this new article on SSRN, titled “Bark and Bite: The Environmental Sentencing Guidelines after Booker.” Here is the abstract: The federal sentencing guidelines for environmental crimes bark loudly, calling for sentences of imprisonment for all but...

Professor Michael O'Hear has this new article on SSRN, titled “Bark and Bite: The Environmental Sentencing Guidelines after Booker.” Here is the abstract:

The federal sentencing guidelines for environmental crimes bark loudly, calling for sentences of imprisonment for all but the most trivial of environmental offenses. Although the terms of imprisonment are not long, the prospect of even a short period of incarceration is doubtlessly capable of getting the attention of the white-collar professionals who typically commit environmental offenses. Research I conducted in 2004, however, indicated that the bark of the environmental guidelines was considerably worse than their bite. Judges “departed” below the applicable guidelines range in an unusually high percentage of environmental cases, barely one-third of convicted environmental defendants received prison sentences, and only about forty percent of prison sentences exceeded one year in length.
Although the data contained in my 2004 study were striking at the time, ensuing developments might appropriately raise questions as to their reliability today. For instance, the Supreme Court fundamentally restructured federal sentencing law through its 2005 decision in United States v. Booker, which changed the status of the federal sentencing guidelines from mandatory to advisory.
With Booker and other developments in mind, the present article updates the data from my earlier study, demonstrating a surprising level of continuity from the Clinton to the Bush eras, and from pre-Booker to post-Booker. Simply put, despite notable institutional and legal changes, the bark of the environmental guidelines remains considerably worse than their bite.
Finally, the article considers normative implications of the bark/bite gap. In light of the overarching purposes and premises of the federal sentencing system, the data provide important support for a fundamental redesign of the environmental guidelines. Failing such a redesign by the Sentencing Commission, the data should be regarded by the courts as providing some support for arguments by individual defendants that particular provisions of the environmental guidelines should not be applied to them.

"Pot Activist Sentenced To 10 Years For Growing 1,000 Plants"

berman.43@osu.edu (Douglas A. Berman) — Tue, 19 May 2009 01:45:41 GMT

The title of this post is the title of this interesting article reporting on a federal sentencing from California. Here are some more details: A federal judge in San Francisco Monday sentenced a Lake County man to 10 years in...

The title of this post is the title of this interesting article reporting on a federal sentencing from California. Here are some more details:

A federal judge in San Francisco Monday sentenced a Lake County man to 10 years in prison for growing more than 1,000 marijuana plants, saying the marijuana activist appeared to "want to be a martyr for the cause."
The sentence for Charles "Eddy" Lepp, 56, was the mandatory minimum under federal law for growing more than 1,000 plants. U.S. District Judge Marilyn Patel said Lepp didn't qualify for a so-called "safety valve" exception with a lesser sentence because he testified at his trial last fall that he was a proud leader of others who grew marijuana on his land.
Patel told Lepp, "I think Mr. Lepp is very proud of what he's been doing. The problem is that now unfortunately, Mr. Lepp, it's caught up with you." "Maybe you want to be martyr for the cause," Patel said. "That will be your lot."
Patel said she thought the length of the sentence was excessive, but said it would be up to Congress to change the law.
Lepp, a disabled Vietnam veteran who says he is now a Rastafarian minister, was convicted in Patel's court in September of conspiring to grow and growing more than 1,000 plants on 23 acres he owns adjacent to state Highway 20 in Upper Lake.
Lepp had contended the marijuana was grown for medical use under California's compassionate use law and for spiritual practice in his Rastafarian religion. But he was not allowed to make either argument at his trial. U.S. drug laws don't allow state medical marijuana laws to be used as a defense in federal prosecutions.

Lepp said at the sentencing, "I've done all I can to comply with the laws and rules of the state in which I reside." He said he informed local authorities in 2004 that his land would be used to enable patients who didn't own land to grow marijuana for medical purposes."
Prosecutor David Hall told the judge, "I've never seen a man work harder to get time in prison than Mr. Lepp has." Lepp's attorney, Michael Hinckley, said outside of court that the sentence was "tragic" and said he will appeal.

Any last-minute predictions about the Lori Drew cyber-bullying case?

berman.43@osu.edu (Douglas A. Berman) — Mon, 18 May 2009 22:53:47 GMT

As detailed in this new Los Angeles Times posting, Lori Drew, who was "convicted of committing a hoax on the social networking site MySpace that led to the suicide of a 13-year-old girl, is scheduled to be sentenced this afternoon...

As detailed in this new Los Angeles Times posting, Lori Drew, who was "convicted of committing a hoax on the social networking site MySpace that led to the suicide of a 13-year-old girl, is scheduled to be sentenced this afternoon in federal court in downtown Los Angeles." As I have highlighted in prior posts, there are lots of interesting legal issues and sentencing questions raised by this case. In addition to the basic question of what sentence Drew might/should be given for her three misdemeanor convictions, there is the preliminary issue of whether her convictions should be dismissed and the procedural issue of whether her crime has "victims" who should be permitted to testify at her sentencing hearing.

Just for kicks, I will make some last-minute predictions (that might soon look silly): I predict that Drew's motion to dismiss is denied, that the victims get to testify at her sentencing, and that Drew gets a sentence of a few months of home confinement. But this is just wild speculation. Any other guesses

Some related prior posts:

UPDATE: Apparently the District Court will keep Lori Drew's legal limbo for at least another 6 weeks. As this new Wired report now explains, following "an hour of discussion with prosecutors and Drew’s defense attorney, U.S. District Judge George Wu indicated he was still weighing a defense motion to overturn the jury verdict in the case and that he needs to review transcripts from the trial to weigh both the motion to overturn and the sentencing. Sentencing is now set for July 2nd."

Interesting group of cert grants from SCOTUS

berman.43@osu.edu (Douglas A. Berman) — Mon, 18 May 2009 20:25:04 GMT

As noted in this post last week, the SCOTUSblog folks had about a half-dozen criminal law cases on their list of “Petitions to Watch.” Though I have not yet figured out the fate of all of these watched cases, the list of four granted cases today have lots of interesting dimensions. The basics are detailed here at SCOTUSblog:

The Court has granted certiorari in four cases today: Free Enterprise Fund and Beckstead and Watts, LLP v. Public Company Accounting Oversight Board, et al. (08-861) Black, et al. v. United States (08-876); Wood v. Allen (08-9156) [limited to questions 1 and 2]; and Beard v. Kindler (08-992).

I welcome comments on whether any of these cases should be of extra interest to sentencing fans.

UPDATE: This SCOTUSblog post provides these additional details on the three criminal case grants:

The Court granted three [criminal] cases, including a review of the fraud conviction of a former media mogul, Canadian Conrad M. Black, in a celebrated case involving allegedly illegal executive compensation. The case is Black v. U.S. (08-876).
Also granted was Beard v . Kindler (08-992), on the proper treatment in a federal habeas corpus proceeding of state procedural rules that are discretionary rather than mandatory. Justice Samuel A. Alito, Jr., took no part in that order. The Court also agreed to hear a death penalty case, Wood v. Allen (08-9156), with the grant limited to the first two questions. The Wood case tests the failure of an inexperienced defense lawyer to present in a capital sentencing proceeding evidence of the defendant’s severe mental impairment.

Kent at C&C has this long post providing lots of helpful context for the Beard v . Kindler grant.

For a very different SCOTUS short list...

berman.43@osu.edu (Douglas A. Berman) — Mon, 18 May 2009 13:19:00 GMT

be sure to check out this segment, titled "Supreme Court Choices You Haven't Heard Of," from NPR's "Weekend Edition Sunday." Among the names I heard on the NPR nominee list of choices I had not heard was my co-author Nora...

I would be very surprised (and very pleasantly surprised) if Nora was named to the Supreme Court now, in part because she is still very young. But I am sure she would be a fantastic jurist and it would be really nice and valuable to have someone on the Court who knows a lot about sentencing law and policy. Notably, Newsday noticed Nora's name on NPR's novel short list, so maybe she will start getting even more buzz soon.

Meanwhile, I am wondering if and when we might get a nominee this week from the White House. I would really like to be able to transition from all the speculations to in-depth examination of an actual nominee, but I am fearing we still may have a while to wait.

Some prior posts on SCOTUS personnel: