Archive for May, 2012

Do Democratic Sentencing Judges Lack Integrity?

Monday, May 28th, 2012

That’s the intriguing question raised by Joshua Fischman and Max Schanzenbach’s new article, “Do Standards of Review Matter?  The Case of Federal Criminal Sentencing,” 40 J. Legal Studies 405 (2011).  Schanzenbach has produced a series of fascinating empirical studies of federal sentencing over the years.  Among other things, his prior work served to demonstrate that Democratic and Republican appointees tend to sentence differently.  The new paper adds a new dimension to this finding by showing that Democratic district judges tend to change their sentencing practices when the appellate standard of review changes, while Republican sentencing seems relatively unaffected.  In other words, to put a sharper point on the findings, Democrats seem to sentence more frequently under the guidelines range when they know they can get away with it.

Does this demonstrate that Democrats sentence based on their personal social values, rather than on legally permissible considerations, while Republicans are more faithful to the law?  That’s one plausible interpretation of the data, but not the only one.

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Posted in Empirical Research, Federal Sentencing, Federal Sentencing--Adjustments, Federal Sentencing--Reasonableness Review, Politics of Crime and Punishment | No Comments »

SCOTUS Decides Blueford, Declines Opportunity to Tighten Up Double Jeopardy “Manifest Necessity” Rule

Friday, May 25th, 2012

On some apparently flimsy evidence of intent to kill, the State of Arkansas prosecuted Alex Blueford for the capital murder of his girlfriend’s one-year-old son. After deliberating for some time, the jury reported that it had unanimously voted to acquit on both capital murder and a lesser-included murder charge, but was deadlocked on another lesser-included offense, manslaughter. The judge sent the jurors back to deliberate further. Meanwhile, Blueford requested that the jury be given a new verdict form on which it could enter a partial verdict of acquittal on the greater offenses.  The judge declined and, after another half hour of fruitless deliberations, declared a mistrial.

Can Blueford now be retried in front of a new jury on the capital-murder charge?  The prosecutor announced an intention to try, and Blueford predictably objected on double jeopardy grounds.  Yesterday, the United States Supreme Court overruled his objections, clearing the path for a second trial.

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Posted in Criminal Procedure, U.S. Supreme Court | No Comments »

Fourth Amendment and Culpability: Adding a Dimension (or Two)

Tuesday, May 22nd, 2012

In its recent decisions in Herring v. United States, 555 U.S. 135 (2009), and Davis v. United States, 131 S. Ct. 2419 (2011), the Supreme Court has indicated that the Fourth Amendment exclusionary rule depends on culpability.  As the Court put it in Davis:

[T]he deterrence benefits of exclusion “var[y] with the culpability of the law enforcement conduct” at issue. When the police exhibit “deliberate,” “reckless,” or “grossly negligent” disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs. But when the police act with an objectively “reasonable good-faith belief” that their conduct is lawful, or when their conduct involves only simple, “isolated” negligence, the “deterrence rationale loses much of its force,” and exclusion cannot “pay its way.”  (citations omitted)

Although the Court has made culpability the key, the Court has not clearly defined the critical boundary between gross negligence and “simple, isolated negligence.”

Craig Bradley illuminates the difficulties in an insightful new article, arguing that courts should take into account the extent of the intrusion into the suspect’s privacy when deciding whether police negligence has crossed the line into misconduct that warrants exclusion.

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Posted in Fourth Amendment | No Comments »

Comparing Police Stops of Citizens in New York and Milwaukee, Part II

Friday, May 18th, 2012

As I discussed in my previous post, frequent police stops of citizens may ultimately prove counterproductive to crime-fighting objectives.  In this regard, I also suggested that who is targeted and how they are treated may actually matter more than the sheer quantity of stops.  If that’s right, then several aspects of the New York stop data are troubling.

Racial disparities are one concern.  Black and Hispanic males between the ages of 14 and 24 accounted for more than 40% of the stops made by the NYPD in 2011, even though they amount to less than 5% of the city’s population.

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Posted in Empirical Research, Fourth Amendment, Milwaukee, Racial Disparities | 1 Comment »

New Issue of FSR Assesses ’96 Reforms of Habeas and Prisoner Rights Litigation

Thursday, May 17th, 2012

In a single month sixteen years ago, April 1996, Congress adopted sweeping changes to both habeas corpus and prisoner rights litigation through the Antiterrorism and Effective Death Penalty Act and the Prison Litigation Reform Act.  A new issue of the Federal Sentencing Reporter (edited by yours truly) now assesses the legacy of the AEDPA and PLRA.  The issue includes much insightful commentary by leading scholars and practitioners.  A list of the authors and article titles appears after the jump.

Although the issue is now out in hard copy, the contents are not yet available through the FSR website.  Stay tuned.  In the meantime, I do have a few extra copies of the issue and would be happy to send them to interested readers of this blog.  You can request a copy by emailing me at michael.ohear@marquette.edu.

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Posted in Eighth Amendment--Applied to Prison Conditions, Federal Post-Conviction Remedies (incl. Habeas), Prisoner Rights (Not Eighth Amendment) | No Comments »

Comparing Police Stops of Citizens in New York and Milwaukee, Part I

Tuesday, May 15th, 2012

Last week, the New York Civil Liberties Union released a report on police stops in New York City, prompting a New York Times editorial yesterday that was quite critical of the police.  As the Times put it, “The mounting evidence reveals a pattern of abusive policing that warrants the attention of the Justice Department, which should be using its broad authority to investigate these practices.”  The newspaper’s criticisms focused particularly on racial disparities in the NYPD’s stops and related uses of force.

Apparently by coincidence, the Milwaukee Police Department also released data last week on police stops, covering both subject stops (the topic of the NYCLU report) and traffic stops.  The data indicate that the MPD and the NYPD have both significantly increased their numbers of stops in recent years.  Although New York had far more subject stops than Milwaukee in 2011 in absolute terms, Milwaukee is actually in front of the Big Apple on a per capita basis.

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Posted in Empirical Research, Fourth Amendment, Milwaukee, Racial Disparities | No Comments »

Crimmigration and Discretion

Friday, May 11th, 2012

For people like me who do not regularly follow immigration law and who are only dimly aware of the recent emergence of the new field of legal practice and scholarship known as “crimmigration,” David Alan Sklansky has a terrific new article with a wealth of data demonstrating the “vanishing boundary” between criminal law and immigration law, as criminal enforcement of immigration laws has skyrocketed and as deportation has increasingly become a favored tool of law enforcement in dealing with suspected criminals.  In addition to the fascinating data, Sklansky also supplies an insightful new explanation for the rise of crimmigration — one that centers on what he sees as a growing comfort level in the United States with the idea of giving front-line actors wide discretion to select from a range of law-enforcement tools in order to address threats to public safety.  I’d like to add another layer of nuance to Sklansky’s theory of discretion, but, first, here are some of the numbers from the article that I found particularly striking:

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Posted in Crime Data, Criminal Procedure, Empirical Research, Federalism and Criminal Law, Parole, Politics of Crime and Punishment, Prosecutorial Discretion | No Comments »

Seventh Circuit Affirms Money-Laundering, Conspiracy Convictions of Car Dealers for Cash Sales to Drug Traffickers

Monday, May 7th, 2012

Amir Hosseini and Hossein Obaei, who operated three Chicago-area automobile dealerships, sold many luxury cars to drug dealers over a ten-year period. Hosseini and Obaei were apparently popular with this market segment because of their willingness to take large cash payments in small bills. Eventually, federal prosecutors caught up with them, and, following a five-week trial, they were convicted by a jury on 97 counts of conspiracy, money laundering, mail fraud, illegal transaction structuring, bank fraud, and aiding and abetting a drug conspiracy. The Seventh Circuit has now affirmed these convictions and the 15- and 20-year sentences that went along with them.

Had it been properly preserved, the most substantial legal issue on appeal would have been the question left open by United States v. Santos, 553 U.S. 507 (2008): whether, in a traditional money-laundering prosecution, the government must prove that the allegedly laundered proceeds are net profits, as opposed to gross receipts, of the underlying crime. (See my blog post about Santos here). However, since the Santos issue was raised for the first time on appeal, the court used plain-error review and found that the defendants could not satisfy the standard given the “unsettled state of the law.” (2)

Hosseini and Obaei also raised an interesting voir dire issue.  (more…)

Posted in Criminal Procedure, Federal Criminal Law--Substantive, Seventh Circuit | No Comments »

A Plea for 924(c) Reform

Monday, May 7th, 2012

In the past year, I’ve enjoyed an extended correspondence with a federal inmate named Adam Bentley Clausen (see website here).  He is working hard to promote public awareness of the problems with 18 U.S.C. § 924(c).  He sent me the following analysis, which I think nicely articulates the case for reform:

Save 4 Billion Taxpayer Dollars by Amending 18 U.S.C. 924(c)

I. Highlights

- I received 213 YEARS for multiple 924(c) “use of a firearm” convictions

- No one was killed nor seriously injured during any of my crimes

- The average male life expectancy is 77 years

- My “life” incarceration will cost taxpayers at least 2 million dollars

- The maximum sentence for my underlying crime(s), Hobbs Act Robbery, was 20 years

- Had I received the 20 year max my incarceration would have cost taxpayers $475,000

-There are approximately 3000 cases similar to mine nationwide each costing taxpayers 2 million dollars, or cumulatively costing 6 BILLION DOLLARS

- A retroactive amendment to statute 924(c) could reduce each “life” sentence down to a more reasonable 20 years (on avg. at resentencing) and thus allow taxpayers to SAVE OVER 4 BILLION DOLLARS

***(Estimated total savings can be compounded once future job earnings and tax contributions of each inmate released after 20 years is considered. Possibly 1 Billion ADDITIONAL Dollars of savings)

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Posted in Uncategorized | 5 Comments »

Setser v. United States: Bureaucratic Sentencing on Trial, Again

Saturday, May 5th, 2012

While he was already on probation for another offense, Monroe Setser was arrested for trafficking in meth.  The arrest led to three separate criminal proceedings: a revocation of Setser’s probation in state court and fresh prosecutions in both state and federal court.  (One wonders why our law-enforcement authorities have nothing better to do with their time than pile on the charges in these sorts of redundant prosecutions.  Oh, to overturn the Supreme Court’s regrettable decision in Bartkus v. Illinois!)  The federal prosecution reached the sentencing stage first, and the district court decided that it should rule on whether the 151-month federal sentence should be served consecutively to or concurrently with the anticipated state sentences.  The court split the difference, determining that the federal sentence would be consecutive to the sentence for the probation violation, but concurrent with the sentence for the fresh state charge.  Then — wouldn’t you know it! — the state court made the federal sentence a logical impossibility by ordering the two state sentences to run concurrently with one another.

On appeal, Setser argued unsuccessfully that the district court lacked authority to make a concurrent/consecutive decision relative to a state sentence that had not yet been imposed.  In Setser’s view, it was up to the Bureau of Prisons to make the call, based on its authority under 18 U.S.C. § 3621(b) to decide whether federal sentences are to be served in a state or federal facility.  The Fifth Circuit rejected this view, and the U.S. Supreme Court affirmed in a 6-3 decision earlier this spring.

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Posted in Federal Sentencing, Federal Sentencing--Process, Federal Sentencing--Reasonableness Review, Federalism and Criminal Law, U.S. Supreme Court | No Comments »