Registry for Drug Dealers? A Mandatory Life Sentence for Lewdness?

Now there's talk about a drug dealer registry in MA. I wonder why our law enforcement people can't track these dangerous criminals without putting them on a registry? But because nobody is really serious about stopping the drug trade it's all just more hot air.

Now mandatory minimum sentences have gone too far, as this post shows.

And here is a notable new paper titled

Public Safety, Individual Liberty, and Suspect Science: Future Dangerousness Assessments and Sex Offender Laws by Melissa Hamilton , University of Toledo College of Law,Temple Law Review, Forthcoming.

Abstract:
This article argues that the new preventive law focus in sex offender laws is largely ineffective and too costly to personal liberty. The application of sex offender laws involving civil commitment, sex offender registration, and residency restrictions is often based on an individualized analysis of future dangerousness, i.e., the risk the defendant will sexually recidivate. In assessing future dangerousness, experts and courts place heavy emphasis on the use of actuarial tools, basically checklists that mental health experts use to derive statistical estimates of risk. This article provides substantiation that actuarial tools, while enjoying the imprimatur of science, suffer from significant empirical faults. Yet courts are largely abandoning their gatekeeping roles in accepting the experts’ testimony using actuarial tool predictions of risk without critical review as required by the Daubert and Frye evidentiary standards. The paper theorizes that this is likely a pragmatic strategy considering the current political and public thirst for retribution against sexual predators. But, use of this empirically-challenged science exacerbates the practice of applying sex offender restrictions to inappropriately labeled individuals. Finally, this article takes advantage of the interdisciplinary trend of engaging social science with the law on expert evidence. More specifically, it offers an empirical assessment of future dangerousness opinions within the Daubert/Frye scientific evidence frameworks. The significance of the conclusion reached in this article is clear: if the law continues to rely upon suspect science that results in the wrong individuals being subject to liberty-infringing sex offender laws, then the drain on criminal justice resources will leave the truly dangerous offenders without sufficient supervision at the risk of public safety.

Retroactivity in SORNA Unconstitutional Punishment

This is huge. A favorable retroactivity opinion from a Ninth Cir Panel. Thanks Doug.

Here is Corey Young on this subject. Volokh weighs in too, calling the decision or opinion not clearly correct. But this disregards common sense in favor of a technicality and precedent established by a quasi political cum legal establishment, the Supreme Court of the United States. Imo a decision is correct, right, when it makes sense. The opinion can always be tailored to fit the decision. Thus, distinguishing a juvenile from an adult in this instance is simply a clever if obvious way to suggest that the effect of retroactivity on adults is punitive as well. Does anybody disagree that registration and its consequences are punitive in light of the many, many studies in recent years finding safety concerns are not well served by registration? How can we continue to maintain the fiction that registration's stated purpose is not punitive but promotes a public purpose?

It is well past time to review the notion that registration serves any good purpose whatsoever, retroactively applied or not.

Ruling is limited to juveniles adjudicated delinquent under the Federal Juvy act. I didn't know there was such a thing. Why is there?

Scotus Term Summary, 2007-08

New York Times summarizes here, the most important decisions of the Supreme Court term just ended, leading with the Guantanamo Bay habeas/access to courts decision, Boumediene v. Bush, No. 06-1195, (the guarantee of habeas corpus applies at the Navy base in Cuba, the court said, and the truncated alternative procedure that Congress set up was not an adequate substitute.).

Not very surprisingly, the decision was “no bolt out of the blue” according to the majority. The minority (Justice Scalia for one) strove mightily to instill fear, the fear of deaths of more Americans, as a direct result of the decision.

Curious, how justices can disagree so drastically on the nature of a notion of what it means to live, and govern, under the rule of law.

What one hand giveth, the other taketh away: By contrast to the sharp division in the Guantánamo case, the court was unanimous in another case on the availability of habeas corpus. It rejected the Bush administration’s argument that two United States citizens facing criminal charges in Iraq, and held in that country by the American military, could not seek federal court review of their detention. The two were entitled to file habeas corpus petitions, Chief Justice Roberts wrote for the court in Munaf v. Geren, No. 06-1666. Proceeding to the merits of the petitions, the court ordered them dismissed on the ground that holding the men while awaiting further action by the Iraqi authorities did not violate their rights.

The Times counts five access to courts decisions deserving of mention.

Of the ten criminal cases deserving mention, two involved sentencing after Blakely: Gall v. United States, No. 06-7949, (upheld a trial judge’s refusal to impose prison time on a young drug offender, despite the sentence of 30 to 36 months called for by the guidelines), AND Kimbrough v. United States, No. 06-6330 (the court upheld a lower sentence for a man convicted of a crack cocaine offense than the guidelines called for under a formula that treated crimes involving crack cocaine much more harshly than those involving cocaine in its powdered form. Justice Ginsburg wrote the opinion. Both cases were decided by the same 7-to-2 alignment, with Justices Thomas and Scalia dissenting). Others involved the lethal injection challenge, death penalty for rape of a child, money laundering, and another had implications for international law.

A FAMMGRAM!

A Famm (Families Against Mandatory Minimums (Sentences)) Gram, at this link, tells about the Second Chance Act, and more. Again, thanks Doc Berman.

Habeas and Sentencing

For those who haven't yet discovered the exciting world of habeas, here is a brief intro:

The quintessential example of a claim within the core of habeas is a challenge to the validity of the prisoner‟s conviction or sentence, that is, a claim that the police, the prosecutor, the defense lawyer, the jury, or the court made a constitutional error resulting in an unlawful conviction or sentence.
***
A prisoner challenging the conditions of confinement, on the other hand, is permitted to bring suit under § 1983.

At this link is an article in which a whole new world of habeas seems to have been rediscovered. In which the Preiser doctrine is turned on its head for good reason. I'm also stunned to see how clearly the authors show that federal judges get it wrong, (on at least two occasions) at pp 18-19. Demonstrating splits in the circuits here is also helpful.

The recommendation splitting sentence admin claims from other categories makes much sense; federal courts are likely to find it very helpful. That further deference is suggested for reviewing state court decisions where state judicial review avails is problematic. The problem of reviewing parole and disciplinary cases remains a daunting, growing, task. Deference only gives state reviewing courts the first opportunity to ignore (sweep under carpet) the valid federal claim. Having said this, AEDPA and PLRA are both legislative mistakes making it only easier to ignore valid claims. The consequences of this will continue to be evident as the prison population grows by leaps and bounds, as a toll on those unfortunate enough to be swept into the dragnet, their families, friends and acquaintances. Policies making it easier to convict and harder to undo wrongful convictions should be viewed with very critical eyes.

I hope after Doc Berman has a read on it he'll post his take. Following is a snippet from the paper by NANCY J. KING Vanderbilt University School of Law and SUZANNA SHERRY Vanderbilt University Law School :

Before 1972, it was not clear whether sentence-administration decisions by state corrections and parole officials were subject to constitutional regulation at all. In that year, the Court held in Morrissey v. Brewer that a parolee does have a liberty interest in his continued release on parole, which cannot be revoked without due process.5 In 1974, in Wolff v. McDonnell,6 the Court extended Morrissey to decisions that deprive d inmates of good-time credits and thus delayed the date of presumptive release. Five years later in Greenholtz v. Inmates of Nebraska Penal and Correctional Complex,7 the Court recognized a liberty interest in the denial or delay of parole, if the state parole system created an entitlement to a parole hearing after a set amount of time served. In particular, the Court held in Greenholtz that a state‟s decision to deny parole must meet minimum due process standards.8 These cases made it possible for state prisoners to raise constitutional challenges to sentence-administration decisions that had previously been unregulated by federal law.

Here are several of the more controversial statements, with which I tend to agree wholeheartedly, to be viewed critically by a trained eye:

The Court‟s expansion of the liberty interests of prisoners, the shift away from discretionary to
mandatory release laws, and the early decisions in Preiser and Wolff were not the only developments that contributed to an increase in the number of prisoners seeking habeas relief for sentence-administration claims over the past thirty years.

Once Edwards was combined with the changes in sentencing and release law described above, it ultimately channeled many sentence-administration challenges into habeas. But there was yet another development, almost simultaneous to the doctrinal change worked by Edwards, which has turned an unfortunate situation into an intolerable one.

in the years leading up to passage of the Act there is no sign in the legislative history that lawmakers anticipated the application of the new provisions to attacks by non-capital state prisoners on administrative decisions that affected the timing of their release from prison.

In general, the law recognizes (1) that similar claims by state and federal prisoners are treated similarly in terms of access to judicial review; (2) that federal courts are more reluctant to interfere with the judgments of state courts than with the actions of other, non-judicial state actors; and (3) that deprivations of physical liberty are the most egregious invasions of liberty.

Wilkinson further complicates the problem, because almost every case can be described both as satisfying and as not satisfying the Wilkinson standard: If the prisoner wins his procedural challenge, it means both that the first hearing was constitutionally invalid (and thus that the result of the hearing was invalid) and that the plaintiff is entitled to a new, constitutionally adequate, hearing.90

when states choose not to authorize judicial review, federal
oversight of the decisions made by their prison and parole officials will be more
exacting than it would have been had the state provided judicial review.

UPDATE: this SSRN piece is still in draft stage.

Crow's Nest:: Sentencing Developments

Though surely authored before Rita, the Fifth Circuit yesterday released US v. Walters, No. 05-51634 (5th Cir. June 21, 2007) (available here) reversing an above-guideline sentence because "the degree of departure in this case is substantial, and there must be more than mere lip service to the § 3553(a) factors to justify such a departure," and "the court did not adequately articulate reasons consistent with the sentencing factors to support the reasonableness of this sentence." (June 22, SL&P)

Effective or Not, Here We Come!

Professor Berman has this interesting post, which refers as well to this one by Corey Young, who says:

supplementing residency restrictions with work restrictions, as is the case in Ohio, is the worst of both worlds since it just reinforces the banishment effect and further undermines the ability of sex offenders to reintegrate into society. And while I think work restrictions alone are better than residency restrictions alone, that is hardly a ringing endorsement.

NB. We are approaching this from the wrong perspective. The real issue: not all sex offenders present the same danger to the community.

If an offender has been released it is because society has deemed the price paid AND the offender no longer a danger to society. An offender who cannot be released under these conditions should not be released. This means that attention is required "in the CAN" and in the PRE-release phase. This is so that we stop placing the cart before the donkey once we recognize the donkey won't move the cart. It is beginning to be shown that this conclusion is the only reasonable one. Treating the issue of dangerousness Post-Release is not the answer. UPDATE ADDED: At the same time, respecting sentencing, the length of incarceration necessary should be tied to a real assessment of the immediate risk. I assume that only the dangerous need to be locked up. All others should receive appropriate punishments short of incarceration.

Post-release banishment performs nothing more than ongoing punishment in effect, if not in name AND is only counterproductive. Safety is not the true or objective purpose of registration laws (which are starting to take on all the characteristics of banishment). Safety cannot possibly be the real concern because these laws leave risk undefined and unaccounted for in the registration scheme.

A case by case approach is necessary to deal with each individual (sex offender or not) who might present a risk upon release (or indictment). An approach that treats every sex offender as if he were the "the worst of the worst" is very, very flawed. (A law and economics approach to this might be rather interesting to contemplate.) The laws only make it possible to shift the blame (political risk), allowing unscrupulous legislators to say "we tried," when "the worst of the worst" strike again. Recidivism is extremely rare in any event but gets all the attention when it does occur.

It is important to get this right in advance of painting the entire community of offenders as dangerous, registering and banishing and taking away earning power, as further punishment for what was in many, many cases a youthful indiscretion, mistake, or tryst.

Also, in more cases than we care to admit sex offenders have been convicted on the basis of false accusations by abusive prosecutors who hold (and withhold) evidence. Sometimes they get caught, as we can see from the Duke rape case, which if you missed it, was featured on CNN by Paula Zahn last night. I wonder whether these cases would not already have garnered pleas if the defendants were not rich, or if they were black and/or if the victim was white.

It is so much harder to throw the illegitimately caught fish back into the river when you are so blind (or greedy). In the deep and deeper South, race and being a Yankee also enter, writ large.

Today in SCOTUS

The opinion of the Court in MedImmune v. Genentech can now be found here. The syllabus is here. Justice Thomas's dissent is here.

The decision in U.S. v. Resendiz-Ponce can be found here. The syllabus is here. Justice Scalia's dissent is here.

The Court's ruling in Burton v. Stewart can be found here. (hat tip SCOTUSblog). And here, is Prof. Berman's reaction and some interesting comments concerning DIG's. Scot Henson at Grits for Breakfast (blog) might call this another "bench slap".

Here is my humble analysis of Burton, 549 U.S. ___ (2007) (dismissed for lack of jurisdiction, on which issue the state had lost challenges below).

The Procedural Bar is a Bleeping (no laughing matter): The Court sua sponte reviews a question of jurisdiction:

In a nutshell, Burton’s petition raised a question that was not properly "exhausted," and was not "excused" from the requirement (because it was presumably known to him that he might have a legitimate challenge after his sentence became final). As such it was not authorized explicitly as a “second or successive“ petition as required. But requiring authorization to proceed with a second petition presumes that one knows of the status as such.

The problem is that in 1998 when B proceeded with the first petition Apprendi had not been decided so he could not have known of the grounds under which he might challenge his sentence. Only after Apprendi (2000) was decided did he raise the challenge (in the 2002 petition) alleging violation of Apprendi. Is it so clear and obvious that a challenge the basis of which has not yet been “created” should have been foreseen, and therefore could not be excused for not having been foreseen?

The following language from Burton might seem dispositive at first glance (however, the 1998 petition was not a “mixed petition” because unexhausted grounds were not stated and the option to withdraw was not available or sensible; B proceeded with the claims he had at the time. Only after Apprendi “intervened” was he able to raise the sentencing claim under that ruling, and Blakely, posed in the 2002 petition):

That court’s ruling that Burton had a “legitimate excuse,” however, is inconsistent with the precise practice we have explained governs in circumstances such as Burton’s.
The plurality opinion in Rose v. Lundy, 455 U. S. 509, 520.522 (1982), stated that district courts should dismiss “mixed petitions“ --those with exhausted and unexhausted claims--and that petitioners with such petitions have two options. They may withdraw a mixed petition, exhaust the remaining claims, and return to district court with a fully exhausted petition. We have held that in such circumstances the later filed petition would not be “second or successive.” Slack v. McDaniel, 529 U. S. 473, 485.486 (2000). Alternatively, prisoners filing mixed petitions may proceed with only the exhausted claims, but doing so risks subjecting later petitions that raise new claims to rigorous procedural obstacles.

UPDATE: Given that a 28 U.S.C. 2244(b)(3) order was not sought (click for stat.) the Court's decision seems justified, if formalistic. This brings me back around to the question, what if you didn't think you were filing a "second or successive"? I know, this is weak, but only if you are a lawyer.

There just seems something wacky about having to ask for a pre-determination in order to file under a new rule in order to invoke that new rule for relief. Isn't it usually clear from the face of a petition that you are invoking a new rule? So what is the point of erecting these "rigorous procedural obstacles"? Surely this is not "justice" but injustice particularly to those who are not lawyers. Thanks Kent, for your response over at SL and P

Strictly Sentencing

A good summary of Booker, Rita, Claiborne: (Martin Magnuson/American Constitution Society for Law and Policy (ACS) Blog)

In its Booker opinion, the Supreme Court held that the Guidelines are unconstitutional, but are nonetheless “advisory.” It further held that sentences given by federal judges would be reviewed for unreasonableness.

In the two years since Booker was handed down, the federal sentencing scheme is largely as it was before; judges routinely sentence within the Guidelines, despite their non-binding nature. Since Booker, several Circuit Courts have even held that a sentence with the Guidelines is presumptively reasonable.

This raises the question of whether a presumption of reasonableness for sentences within the Guidelines range is consistent with Booker. The Supreme Court will explore that issue on February 20, when it hears oral arguments in Rita and Claiborne. In Rita, the question presented is whether a sentence within the Guidelines range is presumptively reasonable. In Claiborne, the Supreme Court will address whether a sentence below the Guidelines range is presumptively unreasonable.

These two cases may be among the most closely-watched criminal cases the Supreme Court will hear this term, particularly in light of recent changes in its composition. Of the five justices who held that the Guidelines are advisory, Justice O’Connor and Chief Justice Rehnquist are no longer on the Court.

Court briefs in the Rita and Claiborne cases are available through the New York Council of Defense Lawyers. Prof. Doug Berman has written extensively on Rita and Claiborne and his blog contains a wealth of information on the issue.

2006 Top Ten Stories

Berman’s 2006 Top Ten (12/30/06) Click here.

10. The paucity of "tough-on-crime" politicking. Reports of rising crime rates and a Republican party with few good election themes had me expecting "tough-on-crime" political rhetoric throughout the election season. But this political dog did not bark, perhaps because Democrats have been consistently "tough" or perhaps because Republicans have found a new prison religion.

9. Continued rise in US incarceration. Though the politics of crime may no longer be out-of-whack, the impact of 20 years of tough-on-crime attitudes continued to be seen in record incarceration rates and overcrowded prisons in state after state. In California, the situation has gotten so bad, some sensible reform might even emerge (details here and here).
8. High-profile white-collar sentencings. Defendants Jack Abramoff, Bernie Ebbers, Andrew Fastow, Jamie Olis, George Ryan and Jeff Skilling all made sentencing headlines this year. Interestingly, Andrew Fastow and Jamie Olis got the same sentence, but the others' sentences were all over the map (and Ken Lay missed the sentencing fun by dying). White Collar Crime Prof Blog has other related year-end highlights here.

6. Continued dialogues about executive clemency. Though notably grants of clemency
remained rare in 2006, clemency issues continued to garner much attention. Ken Starr played a high-profile role in a California clemency request, Maryland's out-going governor keep using this historic power. Also, chief executives in Ohio, South Dakota, and Virginia put off scheduled executions for various reasons.

2. More sex offender mania and some pushback. The severity and creativeness of sentencing for sex offenders reached new heights in 2006. This category archive and the new blog Sex Crimes document that nearly every jurisdiction in the country was dealing with legislation or litigation involving sex offenders. And though getting tougher remained the chief talking point, concerns about the impact of broad residency restrictions or severe mandatory sentences started to garner more attention.

Chilly, but Nice in Western Maryland

Just a little something to get you going on a chilly Tuesday morning in Western Maryland. Thank god it's not Vietnam and thank god its not Iraq.

1 Over at SCOTUSblog, Lyle Denniston is reporting that the Supreme Court has reversed the Ninth Circuit's decision in Carey v. Musladin. The short majority opinion is more about habeas standards than about button-wearing prejudice, though the three short concurrences get into the substantive issues a bit more. For some additional blogosphere commentary, check out Crime Consequences and Althouse (blogs). Hat Tip Doc Berman at Sentencing Law and Policy.

2 California's Prison Problems Spotlighted in NYT:

More on that in LA Times: "Punishing Prisoners at all Costs." As I note in my header (the blurb at the top, describing my blog), "there has to be a better way." (by Joe Domanick, author of "Cruel Justice: Three Strikes and the Politics of Crime in America's Golden State," -- Domanick is senior fellow in criminal justice at the USC Annenberg Institute for Justice and Journalism)

3 Texas Parole: This is of special interest to me so I'm going to do a bit more reading and post further on this. Meanwhile, read Doc Berman on the future of parole here.

4 Unintended Consequences: Iowa's residency restrictions creating more problems than they solve. Hat Tip Doc Berman.

5 Sentencing and SCOTUS:
Sentencing fans eagerly awaiting what the Court will say in the Cunningham case about Blakely's applicability to California's sentencing system will have to wait at least another month.

Some have speculated that, in light of the cert grants on Booker issues in Claiborne and Rita, the Court might not issue Cunningham until late Spring. Personally, I would be surprised if the Justices will sit on Cunningham until it deals with Claiborne and Rita (which won't be argued until late February), but who knows what we should expect from slow-poke SCOTUS these days.

Doc Berman's blog Sentencing Law and Policy has all this and more. My hat is permanently tipped in your direction Doug. Thanks!

Christmas Is Time For Giving: As it will soon be Christmas, or Holidays, or just time for gift giving and spending money, let's not forget that lots of people will be missing their loved ones who might be soldiers fighting overseas, or locked away in prison: there is no justice. Lots of prisoners are just plain innocent. Too many. That's why I started the Innocence Project and write this blog and newsletter. Please donate. Send your check to Innocence Project, PO Box 200, Jefferson, MD 21755.

It is an especially hard time of year if you are in prison. It's hard even if you're not. It is an especially good time to begin thinking of new resolutions and turning over a new leaf. If you have not done your good deed for the day, month or year just start today and give a little. It will make you a better person! There is always room for improvement, right?