Sentencing Law and Policy

"What the Sentencing Commission Ought to Be Doing: Reducing Mass Incarceration"

The title of this post is the title of this notable new article by Judge Lynn Adelman available via SSRN.  With three new members of the US Sentencing Commission, the piece is especially timely, and here is the abstract:

The United States presently incarcerates about 2.3 million people.  We imprison people at a higher rate than any other country and now house more than a quarter of the world’s prisoners.  Incarcerating so many people raises important moral issues because the burden of incarceration is borne largely by minorities from impoverished inner city communities. Further, those incarcerated suffer detriments that go far beyond the legislated criminal penalty and doom many offenders to a continuing cycle of re-incarceration. Over-incarceration is also very costly.

The federal government contributes significantly to this problem.  Every week it locks up a record number of people, presently about 216,000.  While some states have recently reduced their prison populations, the federal prison population continues to increase.  The principal reason for this is federal sentencing law. Since Congress enacted the Sentencing Reform Act (“SRA”) creating the Sentencing Commission and directing it to establish sentencing guidelines, the average federal sentence has more than doubled.  Federal prisons are now at 138% of capacity and consume an ever-increasing share of the federal criminal justice budget.

There are only two ways that we can reduce the prison population: by sending fewer people to prison and imprisoning people for shorter lengths of time.  Many observers believe that the sentences called for by the federal sentencing guidelines, which were mandatory until 2005 when the Supreme Court decided United States v. Booker and made them advisory, are too severe and could be significantly reduced without endangering public safety.  The Commission, however, has shown no interest in making guideline sentences less harsh. Rather, its principal concern is that since Booker judges are imposing too many below guideline sentences and thereby creating disparity.  Thus, it recently asked Congress to require sentencing judges to give additional weight to the guidelines and provide additional justification for sentences varying substantially from the guidelines, and to require appellate courts to presume the reasonableness of guideline sentences and to strictly scrutinize sentences based on policy disagreements with the guidelines.  These restrictions would, of course, increase the federal prison population.

My essay argues that it serves no useful purpose for the Commission to continue to make its top priority curtailing judicial discretion in the name of reducing disparity.  I contend not only that the system created by the SRA and the guidelines failed but that any system principally designed to reduce disparity will fail.  I argue that, instead of attempting to curtail judicial discretion, the Commission should focus on the problem of over-incarceration.  The Commission is statutorily authorized and institutionally well-positioned to address this problem and, by doing so, it could have a positive impact on the entire American criminal justice system.  I propose that the Commission take such actions as modifying the guidelines to expand the use of probation, reducing the severity of numerous guidelines, developing a release program for elderly prisoners, lobbying Congress regarding mandatory minimum sentences, calling public attention to over-incarceration and others.  I also contend that if the Commission is intent upon reducing disparity, the best way to do so is by making the guidelines less severe and thus making it more likely that judges will follow them.

Some recent related posts:

• Prez Obama makes three great new nominations to the US Sentencing Commission
• If (and when?) confirmed, will Judge William Pryor champion federalism concerns within the US Sentencing Commission?
• "How can a member of the US Sentencing Commission promote federalism?"
• Senate confirms new USSC Commissioners Barkow, Breyer and Pryor

Notable capital habeas echo from Firth Circuit after complaint about Judge Jones

As reported in this local piece, headlined "Chief Judge: New Panel Will Be Assigned to Consider Death Row Appeal; Execution still slated for tomorrow," there has now been at least one procedural consequence of the resent complaint filed against Fifth Circuit Judge Edith Jones concerning her comments at a law school about the operation of the death penalty.  Here are the basics:

The chief judge of the 5th U.S. Circuit Court of Appeals this afternoon ordered [via this panel ruling] a new three-judge panel of the court to be assigned to review the case of Texas death row inmate Elroy Chester who argues that comments made by Judge Edith Jones, detailed in a complaint filed last week with the court, indicate she cannot fairly rule in his case.

Whether Chester will be executed as planned, tomorrow night, June 12, is now in limbo. Chester was sentenced to die for the 1998 death of a well-liked Port Arthur fireman who he killed as part of a months-long crime wave. There is no doubt Chester is guilty of the crime, but there remains doubt about whether he is mentally retarded. If so he would be barred from execution under a 2002 U.S. Supreme Court ruling that the practice violates the constitutional ban on cruel and unusual punishment.

To date, Chester's appeals on this point have been denied. Although experts, and even the Texas Court of Criminal Appeals, have agreed that Chester has a low IQ and some deficits in adaptive functioning – two points that clinicians use to determine intellectual disability – the courts (including the CCA) have nonetheless determined that he is not too disabled to be executed. The nature of his crimes and other non-scientific factors upon which the Texas courts have relied to make such determinations are not unreasonable, the Fifth Circuit ruled in 2012.

That ruling was penned by the court's then-Chief Judge Edith Jones about whom a serious complaint of misconduct was filed by a handful of civil rights groups, with the Fifth Circuit's current Chief Judge Carl Stewart. The complaint alleges that Jones made a number of racist and biased comments during a lecture on the death penalty she gave at the University of Pennsylvania School of Law in February....

In response to the complaint, filed June 4, Chester's attorney, Alaska-based Susan Orlansky filed a motion with the Fifth Circuit to stay Chester's execution and to have a new three-judge panel review his previous appeal to the court – or, in the alternative, to have his execution stayed until the investigation into the complaint about Jones' behavior could be resolved. "The Court should not permit Mr. Chester to be executed amid troubling questions about the actual or apparent partiality of the judge who cast the deciding vote [denying his appeal] and [who] authored the opinion in his case."

Tuesday afternoon, Chief Judge Stewart agreed that a new panel should be constituted, but declined to stay tomorrow's execution – leaving three newly-assigned judges a little more than 24 hours to decide whether Chester's previous appeal should be revisited.

In determining that a new panel should be appointed, Stewart noted not only that Jones was subject to a misconduct complaint that raises "questions about the impartiality of the judge as respects petitioners like [Chester] and his underlying claims," Stewart wrote also that his duty to review that complaint gives him a "substantial role" in considering whether it should go forward. The third member of the panel, Judge James Dennis, is also placed an an odd conflicting position because the complaint against Jones also raises an issue about her as it pertains to an ugly episode during a 2011 oral argument during which she slams her hand on a desk and tells Dennis to "shut up" as he is questioning a lawyer about the case at bar.... "Given these extraordinary circumstances, the panel has concluded that another panel must be assigned to consider the pending motions," Stewart wrote today, though he declined to issue a stay of tomorrow night's slated execution, which would make Chester the 499th inmate put to death in Texas since reinstatement of the death penalty.

In a separate opinion, Dennis concurred with Stewart's decision to move the case to three different judges, but opined that the court should also stay the execution "in order to give the new panel adequate time to consider whether to recall the mandate and take further action in this case," he wrote. "If this court ultimately concludes that Chester's motion to recall the mandate is without merit, no irreparable harm will have been done to the state and the execution can be rescheduled," he continued. "Unless a temporary stay of the execution is granted, however, the court may be unable to give the issues presented the deliberate and judicious attention they deserve before the execution takes place. Chester's execution, of course, will moot those issues and any constitutional injury to his rights will be irreparable."

Recent related posts:

• Complaint filed against notable (notorious?) Fifth Circuit judge based on comments about death penalty
• "A Tale of Sound & Fury (But No Transcript): In Defense of Judge Edith Jones"

UPDATE:  As reported in this local piece, Elroy Chester was executed by the state of Texas on Wednesday June 12.

So far in 2013, more investment in cops means less homicides in Chicago

As reported in this interesting front-page New York Times article, headlined "Chicago Tactics Put Major Dent in Killing Trend," it seems Chicago is so far have measurable success in 2013 with a notable form of "hot spot" policing. Here is how the lengthy article begins:

A year after this city drew new attention for soaring gun violence and gang bloodshed, creating a political test for Mayor Rahm Emanuel in President Obama’s hometown, Chicago has witnessed a drop in shootings and crime. Killings this year have dipped to a level not seen since the early 1960s.

So far in 2013, Chicago homicides, which outnumbered slayings in the larger cities of New York and Los Angeles last year, are down 34 percent from the same period in 2012. As of Sunday night, 146 people had been killed in Chicago, the nation’s third-largest city — 76 fewer than in the same stretch in 2012 and 16 fewer than in 2011, a year that was among the lowest for homicides during the same period in 50 years.

In recent months, as many as 400 officers a day, working overtime, have been dispatched to just 20 small zones deemed the city’s most dangerous. The police say they are tamping down retaliatory shootings between gang factions by using a comprehensive analysis of the city’s tens of thousands of suspected gang members, the turf they claim and their rivalries. The police also are focusing on more than 400 people they have identified as having associations that make them the most likely to be involved in a murder, as a victim or an offender.

As Mr. Emanuel, who has said he intends to run for re-election, begins the second half of his first term, it is unclear whether the months of lessened violence will generate a lasting trend, particularly given a spring of rainy, chilly weather here that some experts say may have kept people off the streets and contributed to the relative calm.

Homicides have also decreased in New York, by more than 22 percent as of early this month, and in Los Angeles, by more than 17 percent.

“It’s good, but not good enough,” Mr. Emanuel said in an interview of the city’s improving homicide statistics. He added that a parent had approached him in one of the neighborhoods now saturated with police officers, saying she had started to feel comfortable allowing her child to walk to school. “That to me is the biggest, most important, most significant measure — that a mother feels comfortable and confident enough where she didn’t in past years to have her child walk to school.”

Critics question whether the city can continue to pay for the added police presence. By the end of April, $31.9 million of the $38 million set aside in the city budget for police overtime for the year had been spent, city records show.

Leaders of the police union, who describe some of the current efforts as “smoke and mirrors,” caution that the dismal statistics of 2012 are being used to paint a falsely upbeat picture of 2013, and say they doubt such intense policing efforts are financially sustainable in any major city without expanding the force.

“It seems a little soon to know whether this is a long-term trend,” said Jens Ludwig, director of the University of Chicago Crime Lab. “I think everyone in Chicago hopes it is very much a trend. I wouldn’t pop the Champagne yet, but I’m keeping my fingers crossed.”

In some of the most crime-ridden neighborhoods — even those where statistics suggest clear improvement — some residents say they feel as unsafe as ever, and worry that the closing this fall of the largest number of elementary schools in recent memory may force schoolchildren to venture down blocks controlled by gangs to get to new schools.

Some related posts on modern crime rates, especially in urban areas: 

• Is there really a simple explanation for record-low homicide rate in NYC (or the increase in Chicago)?
• How should we understand and react to a small uptick in San Diego's crime rate?
• Some speculations about the great crime decline in Florida
• Is the great US crime decline now finally over?: BJS reports crime up in 2011
• FBI reports crime was down yet again in 2011 (though BJS said it was up)
• Should we thank unleaded gas and the EPA for the great modern crime decline?
• Still more (and still puzzling) crime rate declines reported by FBI
• Effective Washington Post commentary talks up great (and still puzzling) crime decline

Celebrity injustice?: NFL player Chad Johnson gets 30-days in county jail for lawyer butt pat

As reported in this CNN piece, "Butt pat lands former NFL star Chad Johnson in jail," a low-level sentencing proceeding involving a high-profile defendant in Florida state court has become interesting fodder for debating courtroom decorum and celebrity justice. Here are the intriguing details:

As an NFL player, Chad Johnson patted a lot of men on the butt when he liked their work, but on Monday, defendant Chad Johnson found out that one Florida courtroom was not the place to play that game.

After Johnson patted his lawyer on the rear, Judge Kathleen McHugh rejected Johnson's plea to a probation violation in the domestic violence case involving Johnson and his then-wife, Evelyn Lozada. Johnson was arrested in May for not meeting with his probation officer and was in court Monday to enter a plea.

After he was asked if he was pleased with his attorney, the former wide receiver once known as "Chad Ochocinco" gave his lawyer, Adam Swickle, a gentle pat on the rear.

McHugh was furious when people in the audience laughed. "There's nothing funny about what's going on here today," she told Johnson.

Johnson, 35, replied that he wasn't laughing. Then McHugh said, "I don't think anything's funny about it, Mr. Johnson. This isn't a joke."

Johnson said he didn't do it as a joke. Swickle agreed, saying: "I don't think it was done as any disrespect to the court. I don't think he meant to get a reaction from the court room, judge."

The judge told Johnson she wouldn't accept a plea deal that involved only community service and more anger management counseling. Instead, she sentenced him to 30 days in jail and tacked three months onto his one-year probation, which would have ended in September.

Johnson seemed resigned to his fate. "Love me through the good and the bad because I'm gone love you regardless... See you in 30... " he tweeted later.

As I write this post, I am hearing Skip Bayless and Stephen A. Smith on First Take yelling at each other about sentencing practices, race, gender, incarceration and courtroom activities.  Given that there is this video of what went down (with the key event just before the one-minute mark, and the judge's (over?)reaction just before the two-minute mark), I hope readers will provide their own takes on this notable example of celebrity sentencing.  

Documenting problems with using electonic tracking for crime control in Colorado

The Denver Post recently published this lengthy article headlined "Electronic monitoring of Colorado parolees has pitfalls," which documents that the benefit GPS tracking may depend on who monitors the monitoring.  Here are exceprts:

One sex-offender parolee hooked his GPS tracking device to his dog's collar so he could consort with underage girls and collect firearms, drugs and ammunition, police say.

Another parolee disappeared from his motel the day he was tethered to an electronic monitor.  He now is charged with raping two women and attempting to rape another.  A third kept unplugging his monitoring device and ignored warnings that he stop moving without approval. Authorities now believe he killed a 59-year-old man at a motel.

Well before parolee Evan Ebel tore off his ankle bracelet in March and allegedly killed two people, including Colorado corrections chief Tom Clements, the state's electronic-monitoring system showed signs of trouble.  A Denver Post review of parolee cases and monitoring data from October to April found that serious alerts sometimes went unheeded until it was too late, even as the system generated thousands of false and minor notifications.

Colorado's most dangerous parolees are outfitted with high-tech equipment that is supposed to keep a close watch on their whereabouts.  Monitors are strapped to their ankles and receivers installed in their residences.  In the most serious sex-offender cases, parolee movements are tracked by a GPS system.

But problems arise.  Batteries run down.  Plugs get ripped from wall sockets.  The systems go dark.  The Post found several cases in which parole officers responded slowly as parolees went off the grid and allegedly committed new violent crimes....

Tim Hand, the state's director of parole, requested an audit by the National Institute of Corrections, a U.S. Department of Justice agency, following the Ebel case.  Hand has not talked publicly since being placed on administrative leave last month, but in an interview in April, he said electronic monitoring is a challenge.

"The public thinks we put an ankle bracelet on and everything is fine, but the electronic monitoring is just a tool," Hand said. "It's better, in my view, than not having that tool, but it doesn't mean that offender can't cut it off and run away. It doesn't mean we're going to be able to control that offender's every move."...

Under the state's new rules, when a tamper alert occurs, parolees will be required to stay at their residences until parole officials can visit with them.  Parole officers, who previously had the discretion to respond on their own time frame, will be required to visit a parolee's home within 24 hours after a tamper alert to decide whether an arrest warrant is needed.

Officials also plan later this month to submit a $600,000-a-year plan to legislative leaders for a new parole unit to track down absconders.  In the past, those roundups occurred on an ad-hoc basis using overtime payments to parole officers, with the assistance of local law enforcement.  There are currently more than 800 Colorado parole absconders....

The data showed that a team of 212 parole officers had to respond to nearly 90,000 alerts and notifications generated by the electronic monitoring devices in the six months reviewed.

Carl Sagara, a past deputy director of parole and community corrections in Colorado, said he suspects that such high volume quickly can become overwhelming to parole officers. "These guys come into the office in the morning, and they have got 30 guys on electronic monitors, and the computer has so much information on all these guys, and the parole officers just go, 'Holy smokes,' " Sagara said.

In addition, many electronic-monitoring programs throughout the nation aren't staffed appropriately, said George Drake, a consultant who has worked on improving the systems. "Many times when an agency is budgeted for electronic-monitoring equipment, it is only budgeted for the devices themselves," Drake said. "That is like buying a hammer and expecting a house to be built. It's simply a tool, and it requires a professional to use that tool and run the program."

He added that programs also can get out of control if officials don't develop stringent protocols for how to respond to alerts and don't manage how alerts are generated. "I see agencies with so many alerts that they can't deal with them," Drake said. "They end up just throwing their hands up and saying they can't keep up with them."

"A Conservative Case for Prison Reform"

The title of this post is the title of this op-ed appearing in today's New York Times and authored by Richard Viguerie, the chairman of ConservativeHQ.com. Here are excerpts:

Conservatives should recognize that the entire criminal justice system is another government spending program fraught with the issues that plague all government programs.  Criminal justice should be subject to the same level of skepticism and scrutiny that we apply to any other government program.

But it’s not just the excessive and unwise spending that offends conservative values. Prisons, for example, are harmful to prisoners and their families. Reform is therefore also an issue of compassion. The current system often turns out prisoners who are more harmful to society than when they went in, so prison and re-entry reform are issues of public safety as well.

These three principles — public safety, compassion and controlled government spending — lie at the core of conservative philosophy.  Politically speaking, conservatives will have more credibility than liberals in addressing prison reform.

The United States now has 5 percent of the world’s population, yet 25 percent of its prisoners.  Nearly one in every 33 American adults is in some form of correctional control. When Ronald Reagan was president, the total correctional control rate — everyone in prison or jail or on probation or parole — was less than half that: 1 in every 77 adults.

The prison system now costs states more than $50 billion a year, up from about $9 billion in 1985.  It’s the second-fastest growing area of state budgets, trailing only Medicaid. Conservatives should be leading the way by asking tough questions about the expansion in prison spending over the past three decades....

Too many offenders leave prisons unprepared to re-enter society. They don’t get and keep jobs. The solution lies not only inside prisons but also with more effective community supervision systems using new technologies, drug tests and counseling programs.  We should also require ex-convicts to either hold a job or perform community service.  This approach works to turn offenders from tax burdens into taxpayers who can pay restitution to their victims and are capable of contributing child support....

Right on Crime exemplifies the big-picture conservative approach to this issue.  It focuses on community-based programs rather than excessive mandatory minimum sentencing policies and prison expansion.  Using free-market and Christian principles, conservatives have an opportunity to put their beliefs into practice as an alternative to government-knows-best programs that are failing prisoners and the society into which they are released....

By confronting this issue head on, conservatives are showing that our principles lead to practical solutions that make government less costly and more effective. We need to do more of that.  Conservatives can show the way by impressing on more of our allies and political leaders that criminal justice reform is part of a conservative agenda.

Some recent and older related posts:

• "Right on Crime: The Conservative Case for Reform" officially launches
• "NAACP, right-wing foes get friendly" when it comes to prison costs
• "Conservatives latch onto prison reform"
• NAACP head recognizes Tea Party favors some progressive criminal justice reforms (and sometimes more than Democrats)
• "Prison-Sentence Reform: A bill to give judges flexibility to impose shorter sentences deserves conservatives’ support."
• Wall Street Journal pitch for the Prez to get behind the Justice Safety Valve Act of 2013
• Justice Safety Valve Act gets bipartisan introduction in House of Representatives
• "Bipartisan Legislation To Give Judges More Flexibility For Federal Sentences Introduced"
• Rand Paul begins forceful pitch in campaign against federal mandatory minimums
• Potent new quote from AG Eric Holder: "Too many people go to too many prisons for far too long for no good law enforcement reason"
• Another notable GOP member of Congress advocating for federal sentencing reform

"High Federalism: Marijuana Legalization and the Limits of Federal Power to Regulate States"

The title of this post is the title of this new paper by David Schwartz which I just noticed via SSRN.  Here is the abstract:

The conflict between state marijuana legalization and the blanket federal marijuana prohibition of the Controlled Substances Act ("CSA") has created a federalism crisis in which the duties of state officials to adhere to state or federal law is unclear.  Current federalism doctrine cannot even tell us whether or not a local police officer who encounters a person in state-authorized possession of marijuana must arrest the person and seize the marijuana.

The two most clearly applicable federalism doctrines -- the Tenth Amendment anti-commmandeering doctrine and the doctrine of federal preemption of state law under the Supremacy Clause -- offer only unsatisfactory answers.  Anti-commandeering doctrine is incapable of telling us whether a federally imposed duty to arrest and seize the marijuana possessor is impermissible commandeering, permissible "general applicability," or permissible preemption, let alone answer the more complex federalism questions posed by state marijuana legalization.  Alternatively, a strong preemption approach, while capable of producing consistent results in theory, would entail the virtual abandonment of the anti-commandeering doctrine and of judicial enforcement of federalism more generally, while at the same time violating important premises of the "political safeguards of federalism" theory.

The article argues that courts should pursue a middle path by applying a rigorous presumption against commandeering when considering the obligation of state officials to adhere to federal laws.  This approach is faithful to consensus principles of federalism that should command the agreement of judges and academics on both sides of the judicial versus political safeguards of federalism debate.  A presumption against commandeering, when applied to the CSA, requires that state officials be afforded broad latitude to enforce their states' legalization laws and have no compelled obligations to enforce federal law beyond a duty to refrain from active obstruction of federal officers.  The extent of Congress's power to command state official compliance with the CSA can be considered if and when such an amendment to the CSA is under serious congressional consideration" something that may never occur given the current political trend.

Guidelines are "the lodestone" of federal sentencing (as well as "the starting point and the initial benchmark")

The title of this post is drawn from the key word in a key paragraph that captured my attention in what is otherwise a straight-forward opinion by the Supreme Court today in Peugh (basics here).  Here is the context from a paragraph that effectively summarizes the conclusions of the Peugh majority opinion per Justice Sotomayor:

"The federal system adopts procedural measures intended to make the Guidelines the lodestone of sentencing.  A retrospective increase in the Guidelines range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation."

Major kudos to Justice Sotomayor for adding a fitting new term to the post-Booker federal sentencing lexicon.  Kudos also to the majority Court for stressing these enduring modern federal sentencing realities in the course of reaching its conclusions:

When Peugh committed his crime, the recommended sentence was 30 to 37 months.  When he was sentenced, it was 70 to 87 months....  Such a retrospective increase in the measure of punishment raises clear ex post facto concerns.  We have previously recognized, for instance, that a defendant charged with an increased punishment for his crime is likely to feel enhanced pressure to plead guilty.  See Carmell, 529 U.S., at 534, n.24; Weaver, 450 U.S., at 32.  This pressure does not disappear simply because the Guidelines range is advisory; the defendant will be aware that the range is intended to, and usually does, exert controlling influence on the sentence that the court will impose....

On the Government’s account, the Guidelines are just one among many persuasive sources a sentencing court can consult, no different from a “policy paper.”  Brief for United States 28.  The Government’s argument fails to acknowledge, however, that district courts are not required to consult any policy paper in order to avoid reversible procedural error; nor must they “consider the extent of [their] deviation” from a given policy paper and “ensure that the justification is sufficiently compelling to support the degree of the variance,” Gall, 552 U.S., at 50.  Courts of appeals, in turn, are not permitted to presume that a sentence that comports with a particular policy paper is reasonable; nor do courts of appeals, in considering whether the district court’s sentence was reasonable, weigh the extent of any departure from a given policy paper in determining whether the district court abused its discretion, see id., at 51.  It is simply not the case that the Sentencing Guidelines are merely a volume that the district court reads with academic interest in the course of sentencing.

And kudos also to Justice Thomas for providing a slightly competing vision of the post-Booker world via passages in his dissent like the following that, I suspect, will end up in many more defense sentencing submissions than government ones:

[T]he Guidelines do not constrain the discretion of district courts and, thus, have no legal effect on a defendant’s sentence.  Second, to the extent that the amended Guidelines create a risk that a defendant might receive a harsher punishment, that risk results from the Guidelines’ persuasive force, not any legal effect....

Petitioner next argues that the Guidelines limit district court discretion because sentences falling outside the Guidelines are more likely to be reversed for substantive unreasonableness.  Brief for Petitioner 25.  I doubt, however, that reversal is a likely outcome when a district judge can justify his sentence based on agreement with either of two Guidelines — the old or the new.  If a district court calculated the sentencing range under the new Guidelines but sentenced the defendant to a below-Guidelines sentence that fell within the range provided by the old Guidelines, it would be difficult to label such a sentence “substantively unreasonable.”  To do so would cast doubt on every within-Guidelines sentence issued under the old Guidelines.

I have long suggested that defense attorneys regularly and in every case calculate, and submit to a sentencing court prior to sentencing, the "old" sentencing ranges that would have applied under the original 1987 version of the federal sentencing guidelines which were first promulgated by the original US Sentencing Commission.  The above-quoted passages from Justice Thomas now would enable sentencing courts to feel confident that a sentence within the range suggested by the 1987 guidelines should nearly always be deemed reasonable.

SCOTUS concludes Ex Post Facto Clause still limits application of new guidelines after Booker

Thanks to the fine folks live-blogging at SCOTUSblog, I can provide this summary report (with a few edits) of the one big sentencing ruling handed down by the US Supreme Court this morning:

Justice Sotomayor for the Court in Peugh v. United States....

The decision of the Seventh Circuit is reversed, the case is remanded.  The Court is splintered.  Justice Sotomayor delivers the opinion of the Court except for one part. The Ex Post Facto Clause is violated when a defendant is sentenced under guidelines promulgated after he committed his acts, and the new version of the guidelines provides for a higher sentence than the one in effect at the time he committed his act.

Justice Sotomayor's opinion is for the Court except for a discussion about the policies underlying the Ex Post Facto Clause.  It's another case where Justice Kennedy joins the more liberal members of the Court.

Justice Thomas dissents, joined by the Chief and Scalia and Alito. Justice Alito dissents, joined by Justice Scalia.  Justices Ginsburg, Breyer, and Kagan join all of the Sotomayor opinion; Justice Kennedy declines to join Part III-C.

The big fight in the case was whether the Sentencing Guidelines are important enough to trigger Ex Post Facto review given that they are no longer binding -- the majority says they are....

The part of the Sotomayor opinion that Kennedy does not join is a response to the argument by the government and the dissent that the Ex Post Facto Clause is not implicated by this case.  The ruling will be significant to the ability of courts to apply tougher new sentencing guidelines to pending cases.  It is also a strong reaffirmation of the Ex Post Facto Clause.

The full opinions in Peugh are available here.  The opinion for the Court per Justice Sotomayor runs 20 pages, and the main dissent per Justice Thomas is 14 pages. 

Kudos to the Court in keep this one relatively brief, as I suspect every sentence from the Justices in this case could end up having some impact on the operation of the post-Booker federal sentencing world.  And once I get some time to read these opinions, I will do some follow-up posts on whether Peugh passes the smell test (get it..., I know, pretty lame).

With two opinion days this week, any predictions on coming SCOTUS sentencing decisions?

The fine folks at SCOTUSblog report that we will be getting opinions in argued cases from SCOTUS both today and on Thursday, June 13.  With two opinion days this week, and a third of the nine longest pending cases involving sentencing issues, I am inclined to predict there will be at least some notable Supreme Court sentencing action this week.

So, dear reader, before we start getting some SCOTUSblog updates in the next hour, how about some predictions about which opinions we might get this week and what they might now say.  Specifically, I have my eyes firmly fixed for Alleyne (on the Sixth Amendment's application to mandatory minimums), and Descamps (another ACCA application case), and Peugh (concerning ex post facto limits post-Booker application of new guidelines).  

Based on nothing but rank speculation, I will guess/predict that we get Descamps today, Peugh on Thursday, and Alleyne next week.  And, based on my belief that the Supreme Court remains the most pro-defendant appellate court on sentencing issues in the country, I will also guess/predict that the defendant prevails in all three of these cases.

UPDATE:  We actually ended up getting Peugh on June 10 (discussed here and here), and it was a 5-4 victory for the federal defendant.  Based on the tone and votes and timing of Peugh, I am now starting to think Alleyne and Descamps will come down together, and perhaps not until next week.

"New Sesame Workshop film helps children of jailed parents"

The title of this post is the headline of this notable new segment which ran this morning on the CBS Sunday Morning show.  Here are excerpts:

A new program is aiming to make kids in crisis streetwise -- "Sesame Street" wise, that is.  Seth Doane reports:

At 24, Francis Adjei is now the head of his household, a role he never imagined having to play. "One day, we're all together having dinner; following day, she's in jail. And we don't know what to do," he said.

Two years ago his mother, Jackie Pokuwaah, A Ghanaian immigrant, was convicted of grand larceny, and is serving a seven-and-a-half-year sentence at a state penitentiary.  Adjei had to drop out of school, and now spends his days managing his siblings' schedules, trying to keep them in school....

"When the police came and took your mom," Doane asked Francis, "did anyone ever explain what it meant to be incarcerated?"

"To the children? No," he replied. "We've never went down that direct path, just kind of been beating around the bush."...

But soon Adjei and his brothers and sisters will find a little help on a familiar street: Sesame Street.

Melissa Dino is in charge of a Sesame Workshop production aimed at helping families like Francis' cope.  She told Doane she was struck by the lack of resources for those with an incarcerated parent.  The new, 30-minute documentary mixes the fictional with real-life.  It will not air on the regular "Sesame Street" show, but will be distributed this week to therapists' offices, schools and prisons.

And there is certainly a built-in audience.  According to the Pew Charitable Trust, there are currently 2.3 million Americans behind bars, the largest prison population in the world, which means one in every 28 kids in the U.S. has a parent in prison.  That's up from one in 125 just 25 years ago.

Some of those 2.7 million minors -- including Francis' sister, Breanna Amankwah -- say they don't like people to know a parent is in prison. "When it comes up in a conversation, I just feel uncomfortable, like, really uncomfortable," she told Doane. "I don't feel like talking. I kind of feel a little stiff, and I don't really feel normal."...

Dino said children sometimes think it's their fault that a parent was incarcerated. "They have difficult, guilty feelings; they have all kinds of feelings. They're not sure how to express them," she said. "Incarcerated" features a Muppet character, Alex, who has experienced a father who is in jail. The colorful character is, in effect, color-blind.

"The beauty of a Muppet," said Dino, "is they can be any color. They can speak to so many different children.  Alex is orange and he's got blue hair, so he doesn't speak to any one particular ethnicity or race.  He speaks to all children."

Sesame Workshop, which let us peek behind the scenes at its nine-month-long process, has in recent years tackled issues from divorce to deployment to death.  And Sesame recognized that incarceration was an issue that affected kids, too.  More than 50 percent (54%) of people behind bars have a child under 18....  So Sesame Street, in its simple, familiar way, is trying to break it down, using imaginary characters to explore — and explain — what was once unimaginable, but now more and more common.

Though the image I have reprinted above is meant to add a little levity to this story, I want to compliment Sesame Workshop for taking on this important and serious issue.  The materials assembled by Sesame at the webpage "Little Children, Big Challenges: Incarceration", which provides an array of resources as a toolkit for kids and parents, seems to be developed and delivered with a keen sense of the keen problems that modern mass incarceration has helped create for today's families and children.

After Night Stalker's demise, new talk of new initiative to kick start machinery of death in California

This new local article, which carries the amusing headlined "Initiative supporters want to bring California death penalty back to life," discusses what seems to be a serious effort by some serious folks to use a ballot initiative to try to get the death penalty operational again in the state with the largest death row in this nation.  Here are the basics:

Frustrated by a recent appeals court ruling that invalidates the state's lethal injection procedures, supporters of the death penalty in California plan to launch a campaign to bring the suspended system back to life.

Death penalty supporters hope to circumvent legal challenges to executions through a new initiative that would put in place a single-drug injection procedure for inmates condemned to death, such as the infamous Night Stalker serial killer Richard Ramirez, who died Friday of natural causes.

Advocates of the single-injection protocol seek to avoid supply and legal issues related to the triple-drug protocol used prior to a 2006 moratorium on the death penalty. The ballot initiative would also reform the appellate process to ensure executions for Death Row inmates who have exhausted all appeals and where questions of guilt don't exist.

The proposed initiative would be carried by a coalition of law enforcement, district attorneys, and death penalty proponents who opposed Proposition 34 in the 2012 statewide election. That measure, defeated by 52 percent of voters, would have abolished the death penalty and replaced it with life in prison without parole.

"The initiative will be to streamline and fix the death penalty," said San Bernardino County District Attorney Michael Ramos, a vocal presence during the campaign opposing Proposition 34. "As the voters have indicated, they still believe in capital punishment, and as I asked the voters to oppose Proposition 34, I told them I would do anything I could to fix the issue of delayed justice," Ramos said. "That's what happens with these families. It's not justice if it's delayed, especially in these most gruesome murders."

Legal challenges to execution procedures, raised in both state and federal courts, led to a moratorium on executions in California that has been in place since 2006. More than 725 Death Row inmates await execution, while more than a dozen who have exhausted legal appeals are eligible for immediate execution. Ramirez, convicted in 1989, was among them before his death Friday from liver failure at the age of 53....

Michael Rushford, president of the pro-death penalty Criminal Justice Legal Foundation, said his group will be involved in the initiative campaign, as it had been against Proposition 34. The hope is to get the measure on the ballot for the next statewide election on June 3, 2014. "We want to implement the same process that the state of Virginia and other states have implemented for these cases to be resolved in six years," Rushford said. "California is unique in the United States. We have the longest, most-drawn-out process."

Anti-death penalty groups, such as the American Civil Liberties Union of California, argue the policy is much too costly for the taxpayers, and the risk remains of wrongfully executing an innocent person. The ACLU of California is still planning its next move after the defeat of the 2012 ballot measure.

"We are still deciding what our next step will be," said Ana Zamora, senior policy advocate for the American Civil Liberties Union of California. "We know the problem will not be fixed. It doesn't reduce violent crime, and Californians are extremely concerned about the real risk of executing an innocent person." Zamora said, despite the loss on Proposition 34, the close vote is cause for encouragement....

Zamora called Ramirez's death from natural causes on Friday, "a perfect example" of the "broken death penalty." "People on California's Death Row are more likely to die of old age or illness than they are likely to die from execution," she said. "The death penalty is absolutely a charade."

"Iowa judge calls sentencing guidelines for meth dealers 'flawed'"

The title of this post is the headline of this local article discussing a significant federal sentencing decision handed down late Friday.  Here are the basics:

Sioux City-based U.S. District Judge Mark Bennett on Friday became one of a handful of U.S. judges to declare public opposition to federal sentencing guidelines for methamphetamine dealers. He wrote that he considers them to be “fundamentally flawed,” not based on empirical data and too harsh for lower-level drug figures.

Bennett — declaring in a 44-page ruling that he has a “fundamental policy disagreement” with the methamphetamine portion of guidelines that federal judges are supposed to consider in sentencing criminals — cut the sentence of Sioux City drug dealer Willie Hayes to six years and three months from a possible 15 years, eight months....

Bennett, a longtime critic of mandatory minimum sentences, notes in his opinion that the methamphetamine guidelines lack the depth of other portions of the sentencing blueprint and appear to be more influenced by politics than by science. Methamphetamine dealers in recent years have faced much harsher sentences than dealers of marijuana, cocaine or heroin and run into mandatory minimum sentences for handling a much lower quantity of drug.

“The methamphetamine guidelines are fundamentally flawed because they fail to consider additional factors beyond quantity,” Bennett wrote. “The system is too severe in the indiscriminate way it treats offenders … . Since the methamphetamine guidelines are fundamentally flawed, I find that they fail to promote the purposes of sentencing” outlined in federal law.

Des Moines defense attorney Angela Campbell called the ruling “a very big deal, and it’s also something that’s been coming for a while.”...

Bennett’s ruling borrows reasoning from two other federal judges who have made similar stands — Joseph Bataillon of Nebraska and John Gleeson of New York. “He’s not a lone voice in the wilderness,” said Iowa defense attorney F. Montgomery Brown. And Bennett’s ruling likely will have an affect on how federal drug cases are argued.

“It’s an argument that defense lawyers in both the Northern and Southern districts of Iowa need to make,” Brown said. “It’s malpractice not to.”

I concur with the sentiment that Judge Bennett's work in US v. Hayes (available here) is a "very big deal," and I believe that federal defense attorneys nationwide, not just in Iowa, ought to be raising arguments based on Hayes in every federal meth sentencing case.

How can/should I cover drug markets — black, gray, and white — in my marijuana seminar?

In my first post here last week in my new summer series discussing my plans for my law school semester titled "Marijuana Law, Policy & Reform," I raised some questions about how law professors should think about covering legal history topics in courses not dedicated to legal history.  I am deeply grateful for all the helpful feedback I received via this blog and elsewhere, and I am starting to slowly develop a working game plan for how I will cover and discuss Prohibition and related legal and social history during the first part of my law school seminar to be taught at OSU this coming Fall semester.

As the title of this new post highlights, today's topic on which I seek feedback concerns how I should think about covering drug markets and related economic issues in this seminar.  As I mentioned when talking about how to cover legal history, I sometimes worry that teaching "poor legal history" may be worse than no legal history.  Candidly, I am even more concerned about the prospect of teaching "poor economics" in my seminar — especially concerning modern drug markets, both legal and illegal.

The graphic reprinted here, despite being dated and hard-to-read, provides just a window into the range of challenging market/economic issues that surround just the topic of so-called "medical marijuana."  (For the record, and as I plan to discuss at length in my seminar, I am generally suspicious of any and all uses of the term "medical marijuana" because so many concepts, both valid and not-so-valid, can be and have been rolled into this phrase.)   The graphic draws some data from (biased?) reports like this one, titled "The State of the Medical Marijuana Markets," which is produced by a company trying to market its marijuana market analysis through this website titled Legal Marijuana Markets.

Specifically, one of my chief concerns here is that most, if not all, of those persons and groups likely to assemble information and analyses on modern marijuana markets are likely doing so with a specific advocacy agenda.  More broadly, what necessarily defines a black or gray market is a need or desire not to be transparant about how the market operates and its various economic inputs and outputs.  Indeed, public policy groups like Rand doing sustained reasearch concerning marijuana markets are quick to note that "variation in assumptions such as grams per joint and extent of underreporting can cause substantial variation in estimates of market size."

In addition, I am eager in my seminar to integrate stories about the various historic and modern market/economic realities of marijuana with the various historic and modern market/economic realities of various other licit and illicit drugs — ranging from alcohol to oxycodone to tobacco to valium.  Knowing simply that the national marijuana market might reach up to $10 billion in coming years does not mean much if one does not also know, for example, that the national alcohol market may be well over $250 billion and that tobacco companies spend about $10 billion each year on advertising alone.

So, dear readers, any clear thoughts about how I can and should cover opaque drug market realities?  In particular, I would be eager to get advice on essential dos and dont's: are there certain drug market dynamics I must be sure to cover and/or certain market myths or economic falacies I must be sure not to perpetuate in my marijuana seminar?

Cross-posted at PrawfsBlawg

Recent related post:

• Starting a summer series on the upper-level law school canon and my marijuana seminar

"Man in case of 3 Ohio women held captive faces 329 charges including murder, rape, kidnapping"

The title of this post is the headline of this AP report on the indictments coming from a local grand jury on Friday which charge Ariel Castro with hundreds of crimes for spending a decade torturing three young women in his Cleveland home.  Here are the details:

A man accused of holding three women captive for about a decade in his Cleveland home — sometimes restraining them in chains — has been indicted by a grand jury on 329 charges, including aggravated murder, rape and kidnapping, prosecutors said.

Ariel Castro, 52, is accused of kidnapping Amanda Berry, Gina DeJesus and Michelle Knight and holding keeping them inside his the run-down home, along with a 6-year-old girl he fathered with Berry. A Cuyahoga County grand jury returned the indictment Friday against Castro, a former school bus driver fired last fall.

He faces two counts of aggravated murder related to one act, saying he purposely caused the unlawful termination of one of the women’s pregnancies. Castro also was indicted on 139 counts of rape, 177 counts of kidnapping, seven counts of gross sexual imposition, three counts of felonious assault and one count of possession of criminal tools.

Cuyahoga County prosecutor Tim McGinty said the indictment covers only the period from August 2002, when the first of the women disappeared, to February 2007.

The indictment refers to the women as Jane Doe 1, Jane Doe 2 and Jane Doe 3 and gives a glimpse into the circumstances of their captivity. The aggravated murder counts stem from the unlawful termination of Jane Doe 1’s pregnancy in late 2006 or early 2007, the indictment says.

It says Castro restrained the women, sometimes chaining them to a pole in a basement, to a bedroom heater or inside a van. It says one of the women tried to escape and he assaulted her with a vacuum cord around her neck.

Castro’s attorneys have said he would plead not guilty to any indictment. Castro, during a brief court appearance last month, tried to hide his face, tucking his chin inside his shirt collar, and did not speak. Castro is being held on $8 million bail. He has been taken off suicide prevention watch, jail officials said this week. He has told jail guards he won’t accept news media interview requests....

The women had gone missing separately between 2002 and 2004, when they were 14, 16 and 20 years old. They haven’t spoken publicly since their rescue....

Castro will be arraigned on the charges next week, and a trial judge will then be assigned.

The investigation continues, said McGinty, the prosecutor. When the indictment process is completed, the county prosecutor’s capital review committee will weigh whether the case is appropriate for seeking the death penalty. Days after the women were rescued from Castro’s home, McGinty had said at a news conference that capital punishment “must be reserved for those crimes that are truly the worst examples of human conduct.”...

Attorneys for the three women said Friday they were letting the judicial process unfold in the case. “We have a great legal system plus confidence and faith in the prosecutor’s office and its decisions,” they said in an emailed statement.

Recent related posts:

• Could and should the death penalty be on the table in the Cleveland kidnapping and sexual torture case?
• Cleveland police report supports Aggavated Murder capital charges against Ariel Castro
• "Why Might the Cleveland Kidnapper Get Charged With Murder?"
• Effective discussion of death penalty prospects for Cleveland kidnapper (and alleged pregnancy terminator) Ariel Castro

DOJ unveils new plans and programming for helping crime victims

As reported in this press release, the US Department of Justice yesterday "unveiled a plan calling for sweeping changes to advance crime victims’ rights and services in the 21st century."  Here is more from the press release about this interesting and positive development:

Developed by the Office of Justice Programs (OJP) and Office for Victims of Crime (OVC), Vision 21: Transforming Victim Services Final Report [available via this webpage], is the first collective examination in 15 years of current U.S. practices, funding and outreach in the crime victims’ field.

“Today’s announcement marks the latest step forward in the Department’s ongoing work to protect and empower those who have been victimized,” said Attorney General Eric Holder. “Through Vision 21, we’ve gained an unprecedented understanding of the current state of victim services from coast to coast. And we've developed groundbreaking strategies for responding to urgent needs, combating violence and abuse, and providing critical support to crime victims.”

Vision 21 documents the need to better understand who is affected by crime, how they are affected, how they seek help, who reports victimization and the reasons why some victims do not.  The report calls for continuous, rather than episodic, strategic planning in the victim assistance field and for statutory, policy and programmatic flexibility to address enduring and emerging crime victim issues.  It also calls for the development of evidence-based knowledge founded on data collection and analysis of victimization and emerging victimization trends, services, behaviors and enforcement efforts.

The full 60-page "Final Report" (available here) discusses so many issues relating to crime victims, it is hard to effectively summarize its coverage.  Because I have long been concerned about crime victims having ready access to legal counsel to effectively protect and pursue their statutory rights under the federal Crime Victims Rights Act, I found this passage from the report concerning these matters to be especially worth highlighting:

Recognizing that enforcement of crime victims’ rights was inconsistent, CVRA’s bipartisan sponsors understood that rights enforcement would require access to legal services and professional legal representation at tribal, state, and federal levels.  CVRA authorized funding for the “support of organizations that provide legal counsel and support services for victims in criminal cases for the enforcement of crime victims’ rights.”

The 2004 legislation built on a demonstration project launched in 2002 by OVC, which developed and evaluated a network of legal clinics that might serve as models for the provision of pro bono legal representation of victims in criminal court.  Funding for the OVC demonstration project ended in 2009.  Most of the 12 legal clinics that were established in a handful of states under CVRA and the OVC demonstration project have since significantly decreased operations or closed.  The full promise of CVRA was not realized, although the many legal issues facing crime victims remain.  Moreover, a system of effective legal services that meets the needs of all crime victims must acknowledge and contend with a sobering reality: the majority of crime victims in the United States never contact law enforcement or step across the threshold of a courtroom.

Senate confirms new USSC Commissioners Barkow, Breyer and Pryor

Who says Congress cannot get anything sensible done these days?  As reported in this official press release, the "United States Senate yesterday unanimously confirmed the nominations of three new members of the United States Sentencing Commission: Rachel E. Barkow of New York, Judge Charles R. Breyer of California, and Judge William H. Pryor, Jr. of Alabama."   Hooray, and here is more from the release on the newbies and the Commissioners they now join:

Barkow is the Segal Family Professor of Regulatory Law and Policy at the New York University School of Law, where she focuses her teaching and research on criminal and administrative law....  Barkow began her legal career by clerking for Supreme Court Justice Antonin Scalia from 1997 to 1998, and before that for Judge Laurence H. Silberman ofthe United States Court of Appeals for the District of Columbia Circuit from 1996 to 1997.  She received her J.D. magna cum laude in 1996 from Harvard Law School and her B.A. with distinction in 1993 from Northwestern University.

Breyer has served as a United States District Judge in the Northern District of California since 1998.  Previously, he [had] brief stint as Chief Assistant District Attorney for San Francisco in 1979.  From 1973 to 1974, Breyer worked as an Assistant Special Prosecutor on the Watergate Special Prosecution Force.  He also served as an Assistant District Attorney in San Francisco from 1967 to 1973.  Breyer began his legal career as a law clerk to Judge Oliver J. Carter of the United States District Court for the Northern District of California.  He received his J.D. in 1966 from the University of California at Berkeley Boalt Hall School of Law and his B.A. cum laude in 1963 from Harvard College.

Pryor has served as a United States Circuit Judge for the Eleventh Circuit since 2004.  He has also taught federal jurisdiction at the University of Alabama School of Law and has served as an adjunct professor at the Cumberland School of Law at Samford University. Prior to his appointment to the bench, Pryor served as the Attorney General of the State of Alabama from 1997 to 2004 and as a Deputy Attorney General from 1995 to 1997....  From 1987 to 1988, Judge Pryor served as a law cl erk for Judge John Minor Wisdom of the United States Court of Appeals for the Fifth Circuit.  He received his J.D. magna cum laude in 1987 from Tulane University Law School, where he served as Editor-in-Chief of the Tulane Law Review, and his B.A. magna cum laude in 1984 from Northeast Louisiana University (now University of Louisiana at Monroe).

By statute, the Commission is composed of seven voting members and two non-voting ex-officio members.  No more than four commissioners may be members of the same political party, and at least three shall be federal judges.  The Commission’s four other voting members are Judge Patti Saris of the District of Massachusetts (chair); Chief Judge Ricardo H. Hinojosa of the Southern District of Texas; Dabney L. Friedrich of Maryland; and Judge Ketanji B. Jackson of the District of Columbia.

Some related posts:

• Prez Obama makes three great new nominations to the US Sentencing Commission
• If (and when?) confirmed, will Judge William Pryor champion federalism concerns within the US Sentencing Commission?
• "How can a member of the US Sentencing Commission promote federalism?"

Welcome to the blogosphere: "The Civil-Criminal Distinction Blog"

I am pleased to learn that the idea of academics starting new blogs about legal issues has not yet become passé, as evidence by this new blog titled "The Civil-Criminal Distinction Blog."  This title, obviously, reveals the planned focus for this new blog, but this about page provides these additional details about the author and his plans:

My name is Alexander Blenkinsopp.  I am a graduate student at Harvard University.  You can e-mail me at civil.criminal.distinction@gmail.com.

This blog is dedicated to documenting and analyzing the blurry distinction between civil law and criminal law.  I intend to use this space to call attention to interesting scholarship on the topic, to highlight current news involving the civil-criminal distinction, to discuss cases implicating this subject, and to share my own thoughts on the issue.  I welcome comments, both on the blog itself and via e-mail.  My introductory post provides more information.

The modern regulation of sex offenders seems likely to be a frequent topic on this new blog, as evidenced by these two recent substantive posts:

• South Carolina Supreme Court on GPS Monitoring of Sex Offenders
• Continued questions about civil commitment of sex offenders

"A Tale of Sound & Fury (But No Transcript): In Defense of Judge Edith Jones"

The title of this post is the title of this notable lengthy commentary authored by Tamara Tabo at Above the Law concerning the new complaint of judicial misconduct filed against Fifth Circuit Judge Edith Jones earlier this week. The piece merits a full read for anyone following this brouhaha, and here are some excerpts:

I interned with and clerked for Judge Jones. I didn’t attend the event in Philadelphia [which served as the basis for the complain], and I haven’t spoken with her about this situation, but I don’t claim to be a fully impartial observer. I could be the first among many to attest to her dignity, intellect, and impeccable ethical standards. I could even tell you how generous with her time and supportive she’s been of my law school, a historically (and still predominantly) black institution.

But I don’t need to do that. I don’t need to offer a character reference in order to rebut the accusations made in this complaint. I don’t even need to contest many of the facts that the complaint alleges. While there’s not enough space here to evaluate each of the charges the complaint makes, let’s have a closer look at a few of them, starting with her alleged comments on race.

According to the complaint, Judge Jones asserted that “certain racial groups commit more of these crimes than others.” She said that “[s]adly some groups seem to commit more heinous crimes than others.” When asked to explain her remarks, she stated that there was “no arguing” that “Blacks and Hispanics” outnumber “Anglos” on death row and “sadly” it was a “statistical fact” that people “from these racial groups get involved in more violent crime.”

Note that she did not say that race causes criminality, only that we see a disproportionately high number of violent offenders of certain races. These are facts. Even without knowing her, you could easily conclude that Judge Jones thinks these are unpleasant facts. That would certainly explain her alleged repeated use of the word “sadly” in reference to these statistics about race and crime.

If Judge Jones had followed these facts with a different policy claim, would we consider factual statements to be proof of impartiality or impropriety? Or is it less that what she stated was false and more that it was simply not to some liberal audience members’ liking? One could cite these same facts, then proceed to argue for all manner of social reforms — ones that address the causes of the racial disparity in criminality. Doing so would be entirely compatible with what Judge Jones allegedly said during her speech.

What if Judge Jones had said that males were more likely to commit violent crimes than females? Would that be a problem? More violent offenders in our justice system are, in fact, male than female, after all. Would any reasonable person accuse Judge Jones — herself a non-male! — of undermining “public confidence in the judiciary” or being so gender-biased that she would be unfit to handle criminal cases? I hope not.

Correlation is not causation. Nothing in the complaint shows that Judge Jones suggested or thinks that race causes criminality.

The complaint further alleges that Judge Jones engaged in misconduct when she discussed capital defendants who raise claims of mental retardation. The complaint’s footnote 10 states, “This term is outdated — now generally replaced by “Intellectually Disabled” — and thus Judge Jones’s use of the term “mental retardation” is kept in quotations.”

I work with clients (in a clinical setting, not a legal one) who suffer from severe cognitive impairments. In that setting, I wouldn’t describe a client as “mentally retarded,” because we’re after more precise diagnoses and because, yes, that catch-all term has fallen out of favor. But do you know who does routinely use the term “mentally retarded” in a professional setting? The United States Supreme Court — as quoted in the complaint’s footnote 11, for example. Using that term suggests a willingness to use a legal term of art, not necessarily some outmoded insensitivity to people, say, with Down’s Syndrome.

It is not disrespectful of individuals with disabilities to be angered by false claims of mental retardation, as Judge Jones allegedly was. It does not malign their dignity to suggest that many are capable of choosing between good and evil. Just because one thinks that a particular legal claim is frequently abused does not mean that every instance of such a claim is abusive or legally frivolous. We’re accusing one of the most respected judges of the federal judiciary of misconduct over something that even the Onion satirizes.

The complaint alleges that Judge Jones “indicated that any Mexican National would rather be on death row in the United States than in a Mexican prison” and “stated that Mexico ‘wasn’t about to provide any of their own citizens with the kind of legal protections the person would get in the United States.” The complaint does not even bother to contest this joke, since it’s (a) a joke, and (b) uncontestable. Even the U.S. consulate helpfully reminds U.S. tourists to Mexico that they won’t benefit from little perks of the American justice system such as the presumption of innocence....

What is it we expect judges to talk about when we invite them to speak, if not some “view from the bench”? We expect them to draw on their actual experiences with actual cases. That is, frankly, why most judges are more interesting to listen to than most law professors.

We rightly expect that judges will not publicly comment on cases currently pending before them. To be clear: no affiant claimed that Judge Jones did so. Once again, even if we take their account of what she said as true, it just doesn’t add up to anything worthy of censure.

If there’s one woman on the planet who doesn’t need a pipsqueak like me defending her, that woman is likely Edith H. Jones. She likely will not dignify these charges with any response. I, however, am not so constrained by that sort of dignity. Obviously.

Recent related post:

• Complaint filed against notable (notorious?) Fifth Circuit judge based on comments about death penalty

"Prosecutor who got 'Hulk' email from federal judge leaves Justice Department"

The title of this post is this latest news emerging from the Des Moines Register concerning the questionable conduct of a new federal judge and federal prosecutors in Iowa.  Here are some of the ugly details: 

The federal prosecutor who received a controversial email from U.S. District Judge Stephanie Rose comparing herself to the Hulk and advising lawyers not to make her angry has left her job with the U.S. Department of Justice.

The departure of Shannon Olson, the former appellate chief for Iowa’s southern judicial district, follows the exit of another federal prosecutor who claims she was fired as the result of age discrimination and harassment by Rose.

A spokesman for the U.S. attorney’s office said Wednesday that Olson no longer works for the Department of Justice, but he declined to say why or when her employment had ended. Olson’s departure follows allegations in court documents that an email Rose sent to her in January might have been intended to warn of potential consequences if Olson testified in the civil lawsuit that accuses Rose of age discrimination and harassment. Olson could not be reached for comment by The Des Moines Register.

Rose has declined to answer the Register’s questions but has indicated she would do so after court cases about the matters are resolved. In court papers, Rose has characterized allegations about her conduct as “inaccurate, at best, and deliberately misleading, at worst.”

The controversial Hulk email was sent by Rose to Olson in January, four months after Rose’s lifetime appointment as a federal judge was confirmed. Two hours after she sentenced a drug dealer to eight years in prison, Rose sent Olson an email in which she likened herself to the comic-book character the Hulk, saying, “You won’t like me when I’m angry. There’s a lesson in there for all attorneys.”...

The email is one of at least three that Rose sent to prosecutors earlier this year. They were first disclosed in the Holm case when prosecutors notified defense attorneys that Rose had written to prosecutor Nicholas Klinefeldt, questioning some of his staff’s practices.

The majority of the issues raised in those emails were related to the wording of court pleadings. But Rose also expressed a concern that prosecutors weren’t presenting all of their evidence, some of which could be used to extend the prison terms of defendants.

After prosecutors mentioned those emails at a hearing, Rose entered the documents into Holm’s court record, but sealed them from public view. A few weeks later, she wrote to several Iowa defense attorneys whose prosecutions she had questioned. She wrote that it was her understanding that Klinefeldt’s office had shared her emails with other members of the bar, and that “inaccurate, or incomplete, information about the email exchange is floating through the bar. And in my experience, that is never a good thing.”

Rose attached copies of the email exchanges with Klinefeldt, but she did not include the email referring to the Hulk that she sent to Olson. Rose has described her emails to prosecutors as “entirely appropriate, generic contact” about errors and inconsistencies in their court filings....

The Code of Conduct for federal judges states that generally a judge should not initiate, permit, or consider communications with only one side in a case except for scheduling, administrative, or emergency purposes, and only if the communication doesn’t address substantive matters.

And, according to the U.S. Judicial Conference Committee on the Code of Conduct, a judge shouldn’t “provide guidance on the ins-and-outs of practice” before the judge’s court or “provide direct assistance in a given case.”

Rose has been a U.S. district judge for the Southern District of Iowa for nine months. She previously worked as a prosecutor and served as U.S. attorney for the Northern District of Iowa from 2009 through August 2012.

The Register has filed a formal Freedom of Information Act request with the U.S. Department of Justice. Among other things, the Register has asked for all emails between Rose and federal prosecutors in Iowa over an 18-week period.

Recent related post:

• New federal judge in Iowa accused of acting as "prosecutor-in-chief" at sentencing