Booker lives on….

With the upcoming five-year anniversary of the Supreme Court’s decision in Booker and a new Wall Street Journal piece discussing the enduring challenge of balancing individual and equal justice, I have been thinking lately about increased federal sentencing disparities.  Here are some of my early thoughts:

1. As was rightly expected, there seems to be increased disparity in sentencing outcomes after Booker.  With the guidelines advisory (but with the open-ended 3553(a) standards mandatory), it was all but inevitable that a diverse set of district judges nationwide, who are imposing sentences while subject to a diverse sets of legal, cultural and practical influences in diverse settings, were likely to impose a more diverse set of sentencing outcomes.

2. Increased sentencing disparities after Booker seem most evident where the now-advisory sentencing guidelines are least sound, such as in low-level crack cases, child porn downloading cases and high-loss, white-collar fraud cases.  Especially when first offenders in these cases are facing very high guideline ranges, many sentencing judges (though still not most) believe that 3553(a) demands imposing non-guideline sentences.

3. Increased sentencing disparities after Booker might be reducing overall sentencing injustice in the federal sentencing system given the injustice of certain guidelines.  As the US Sentencing Commission’s own studies suggest, having all crack offenders sentenced to often unjust sentences before Booker may be much worse that having some (but not all) crack offenders now getting different and sometimes more just sentences after Booker.

4. Federal district judges probably merit the least blame for increased sentencing disparities after Booker, as they must in each case try to balance the mandates of the open-ended 3553(a) standards without the help of sound sentencing guidelines in many cases.  Indeed, playing the “blame game,” here is how I would roughly prioritize who merits the most “blame” for increased sentencing disparities after Booker:

A.  Congress — for failing to seek to reform or revise the entire system after Booker

B.  US Sentencing Commission — for failing to revise the most unsound guidelines

C.  SCOTUS and the Circuits — for failing to give reasonableness review any substantive content

D.  Justice Department — for failing to urge Congress or the USSC to do better

Of course, there is additional “blame” to go around for increased sentencing disparities after Booker, as individual prosecutors and defense attorney have surely been “disparate” in their sentencing advocacy over the past five years.  Similarly, there is surely increased post-Booker disparity in sentencing procedures adopted by individual US Attorneys’ offices and probation offices, and differing procedures surely contributes to disparate outcomes.

But as suggested above, I think it unfair (and not especially productive) to blame sentencing actors with case-specific sentencing responsibilities for increased sentencing disparities after Booker. These actors will (and necessarily should) principally focus on achieving individualized justice in the individual cases they address each day.  If there is a broad concern that system-wide justice is not being well-served as we approach Booker’s five-year anniversary, the blame should be principally placed on the system-wide actors who’ve mostly produced and perpetuated the post-Booker system-wide framework.

 

Life or Death

The Sentencing Project recently released an amazing study of state and federal prisoners showing that 1 in 11 prisoners are serving life.  The link to the article is here.  This is the abstract:

The Sentencing Project Releases National Report: 1 in 11 Prisoners Serving Life Sentences A new report released by The Sentencing Project finds a record 140,610 individuals are now serving life sentences in state and federal prisons, 6,807 of whom were juveniles at the time of the crime. In addition, 29% of persons serving a life sentence (41,095) have no possibility of parole, and 1,755 were juveniles at the time of the crime. No Exit: The Expanding Use of Life Sentences in America represents the first nationwide collection of life sentence data documenting race, ethnicity and gender. The report’s findings reveal overwhelming racial and ethnic disparities in the allocation of life sentences: 66% of all persons sentenced to life are non-white, and 77% of juveniles serving life sentences are non-white.

 

Corruption in Jersey? Who would’ve thunk it….

Yes, politicians are once again for sale.  Or perhaps it’s more accurate to say that they are just bugs now running away from the light when the feds moved their rock.  The Wall Street Journal blog summarizes the situtation nicely:

The arrests and summonses made today were made pursuant to a two-tracked investigation that had gone on for 10 years. One track: a public-corruption probe which led to the arrest and summons of 29 politicians and a money-laundering probe allegedly involving 15 others, including 5 rabbis. The list of those arrested (click here) include the 32 year-old Hoboken mayor, Peter Cammarano, a Democrat (pictured, left); Secaucus mayor Dennis Elwell (pictured, right), also a Democrat; state Assemblyman Daniel Van Pelt, a Republican; and Democrat Leona Beldini, the deputy mayor of Jersey City. The money-laundering scheme allegedly involved Saul Kassin, the Coney Island-based U.S. head of a large Syrian-Jewish congregation.

Politicians “willingly put themselves up for sale,” for “hundreds of thousands of dollars,” said Mara during the press conference, saying they took advantage of “huge loopholes” in the state’s anticorruption laws. “The victims here are average citizens; they don’t have a chance in this culture of corruption,” he added. Through a sting operation involving a single cooperating witness, Mara says the government effectively laundered $3 million and paid about $650,000 in bribes to politicians.

The probe also involves the trafficking of body parts. According to Mara, Levy-Izhak Rosenbaum was allegedly engaged in a scheme in which he purchased kidneys from live donors for $10,000 each, then would turn around and sell them for $160,000.

The WSJ full article is here.

 

Prisons are budget busters….

California has long been incarcerating (warehousing) people but the DOC budget has helped bring the state to it’s knees financially.

As detailed in this Los Angeles Times article, which is headlined “Opposition to state budget deal mounts,” the budget deal worked out in California to deal with a huge deficit includes huge cuts to the prison population.  Here are the details and the brewing debate:

[I]t was the effect that the deal would have on prisons that seemed to offer the most potential for trouble. Neither the governor’s office nor the Legislature had publicly released details of the prison portion of the agreement. When they were revealed, Blakeslee (R-San Luis Obispo) insisted that he had not agreed to them….

The governor’s corrections chief, Matt Cate, said the administration was doing a “full-court press” to win approval for the plan. “If we don’t achieve these measured, thoughtful, I think smart-on-crime proposals, then we really are in a position where we have nothing left to do but talk about early release,” Cate said.

If it passes, the prison plan would be a prime example of how the budget crisis could force California to make changes that have long been talked about, but have proven politically difficult. It would amount to a significant reversal of a decades-long pattern of longer sentences and rising prison populations. Steinberg told reporters that the proposal would target the “revolving door” that state prisons have become for lower-level offenders.

The plan resembles recommendations from experts on reducing California’s prison overcrowding, which is the focus of a federal lawsuit in which judges have been considering whether to order a mass inmate release. “We have not done a very good job in California of distinguishing between people who are violent and who belong in prison for a long time, and those who could succeed on the outside with supervision, who have not demonstrated any history of violence,” Steinberg said.

The prison plan would give state corrections officials authority to allow any inmate with 12 months or less on his or her sentence to serve the remaining time on home detention with electronic monitoring.

Inmates who are over 60 or medically incapacitated could also get home detention or be confined in a hospital. In addition, inmates who achieve milestones in rehabilitative programs, substance abuse treatment, vocational training or education could receive up to six weeks off their prison terms.

The plan includes Schwarzenegger’s proposal to release and deport illegal immigrant felons, and a scaled-down version of another proposal of his to change some felonies to misdemeanors so inmates could be held in county jails instead of prisons. Sentences for property crimes also would be scaled back.

A “Parole Re-Entry Accountability Program” would reduce the state parole population by 46,000 — more than a third of those now under supervision — depending on their crimes and behavior. Those former prisoners convicted of the least serious crimes would not be subject to parole revocation that could return them to prison.

The budget plan also would create a sentencing commission to reexamine the state penal code, which would not save money immediately but would advance plans under discussion by lawmakers for years. The commission would have three years to establish new sentencing guidelines.

 

Should Kids be on the Sex Offender List?

An interesting post on Professor Lerman’s sentencing blog cites articles out of Texas showing kids as young as 10 are on that state’s sex offender registry list.  Is this possible?  In Texas, all things are possible.  The article beguns:

The faces of child sex offenders are startling — chubby cheeks, big eyes, a mop of hair, or wispy strands held back with barrettes. The descriptions on Texas’ public registry are equally jolting: 4 feet tall, 65 pounds; 4 feet, 2 inches, 70 pounds.  ”Those are not the people that we’re walking around terrified of,” says Michele Deitch, a University of Texas law professor.

The inclusion of children as young as 10 on the state’s public sex offender registry is a little-known policy — even to juvenile justice experts such as Deitch.  ”I’m absolutely a little bit shocked that kids that young can be on the list,” says Deitch, who teaches juvenile justice policy at the LBJ School of Public Affairs.

She’s stunned because public registration contradicts the purpose of juvenile justice: to give kids a second chance.  In the case of some juvenile sex offenders, their criminal records are off limits, but information about their crime is easily accessible on the Internet. “It is a terrible situation,” Deitch says.  “The juvenile justice system is designed to rehabilitate kids and to make sure that they can change.”

According to the Texas Department of Public Safety, there is no minimum age for inclusion on the state list.  But a child must be at least 10 to be handled by the state juvenile justice system, so a judge may order an offender that young to register.  No child can be certified as an adult in Texas until age 14.

Shocked though Deitch and others may be, Texas is actually more liberal on juvenile sex offender registration than some states.  After experimenting with mandatory registration from 1999 until 2001, registration was left to judicial discretion.  Juvenile registration lasts for only 10 years, and those on the list may petition for removal.

In some states, children can be registered at age 7, though Nicole Pittman, a Philadelphia attorney who monitors juvenile sex offender registration laws nationwide, says adjudication of children younger than 10 is rare.

 

The Problem With Denny…

The prosecution and conviction of Steven Avery will take another turn as his appeal tries to undo the ruling of the trial court that he could not argue that other specific individuals committed the crime.  The appeal (at least the public portion – the rest is sealed) centers around this refusal of the trial court to allow Avery to argue that 5 other individuals who either lived on the same property or were friends of those that did, had motive, oppotunity and specific evidence linking them to the murder.  The postcoviction motion argues that he was denied fundamental constitutional rights including: the right to present a defense, to confront his accusers and to be able to subpoena witnesses in his defense.    He is absolutely right and the judge was absolutely wrong.  Love him or hate him, Avery has the exact same rights as any one of us – perhaps more given his 18 years of wrongful incarceration.    The judge’s ruling boiled down to this:  he felt that this defense would amount to a “collateral issue.”  Amazingly, he thought that this interpretation of the law would result in Avery accusing “hundreds” of people and devolve into a series of mini-trials despite the fact that the defense limited it to 5 specific people with a specific recitation of facts supporting what they were doing.  The bottom line is that Avery’s guilt or innocence is for the jury to decide but the court, like the Manitowoc County Sheriff’s Department, were focused on one person alone: Avery.    You can see some limited media analysis here.

 

A Step Back From the Race to Criminalize….

Inserted in the budget recently signed by Governor Doyle was a little noticed provision that significantly expanded the statutory authority of judges to expunge the records of those convicted of certain offenses.  Prior law only allowed those under 21 who had been convicted of a misdemeanor to have their records cleared.  The new provision allows those convicted of H and I felonies (except violent offenses) who are under 25 to have the court record expunged.  This is a significant step in the right direction as far too many individuals have had their lives thrown off track by some unfortunate youthful behavior.  Since many of these low level felonies (the full range is A-I) are minor drug offenses, the legislature was correct to make this change.  However, more needs to be done since this does nothing to change the fact that everyone – employers, landlords, school offiicials – can still see the case on CCAP.  Though courts actually have the inherent powers to order that this electronic record be removed also, the CCAP committee’s position is that nothing is removed – ever!  Judges have generally cow-towed to this unofficial mandate.    It is time to change this very damaging reality for those that have either an expungement order or their cases dismissed.

 

Two-Fisted Slobbers Beware

The Wisconsin legislature is currently brewing up a new batch of drunk driving laws that will greatly heighten the penalties and lower the legal standards for drivers.  See, e.g., this article.    The following measures are in a bill that is greased for passage:

1.  Mandatory immobilization of vehicle if BAC is .15 on a 1st offense and on any subsequent offense.  You also do 6 months if you tamper with your ignition interlock device.

2. After a 1st conviction, your legal limit is .02 for the next 2 years.

3. If your BAC on a 1st is between .08 and .99, you must pay the OWI surcharge and do an alcohol assessement (not currently required).

4. A 4th offense is now a class H felony with 2 years mandatory prison (3 years for a 7th – 9th offense).

5. Any revocation time of your license is “tolled” during the time you are in jail/prison.

These are just the highlights and will substantially ramp up the stakes for all of us.  While it is NOT against the law to drink and drive in Wiscsonsin, you may want to think twice about that glass of wine at dinner.

 

A Wall of Justice….

Recently the court of appeals basically attacked former Milwaukee County Circuit Judge Joseph Wall in opinion vacating the sentence of Landry Harris on drug charges because, they said, his comments at sentencing were capable of being interpreted as racist.

Aside from the very thin reasoning in the opinion, they really picked on the wrong guy. I have known Joe Wall for many years and can say with great confidence that he is one of the fairest, brightest and most professional attorney I have ever met. He is deeply involved in the rights of the poor and goes out of his way to be fair in all circumstances. Moreover, he is a very decent human being.

While he may have used strong language (referring to the girlfriend supporting him as his “baby mama”) it was not out of line in any way (and that’s coming from a defense attorney!) . The appellate judges here simply must have more significant cases to work on than this kind of trivial nonsense! Come on, there are real problems with the system that need to be addressed!

John A. Birdsall, Attorney at Law
Birdsall Law Offices, S.C.
135 W. Wells St., Suite 214
Milwaukee, WI 53203
414-831-5468 – Fax
414-831-5465 – Telephone
800-257-4799 – Toll Free
www.birdsall-law.com

 

Computer Kiddie Porn Acquitals

I have just finished a very complicated (on one level) and simple (on another level) case involving kiddie porn that was found on a computer. The complicated part was challenging the fact that digital imaging technology is of such a sophisticated nature that even experts can’t tell the difference between morphed images and real ones. In other words, the images that are discovered on a computer could have been adult females and simply manipulated to make them look like children.

The simple part was that the charged images were all logged in under my client’s girlfriend’s name! The state argued that my client was the one that actually accessed the pictures because there was a search for “preteen” under his login.

To make a long story short – after a series of computer experts testifying that the images were not morphed and that the children were real, the jury acquitted on all 10 counts.

Needless to say, a very relieved client! What really bothers me, however, is that district attorneys around the state continue to charge these patently weak case. Is it a reaction to public hysteria over sex crimes in general (witness the “rape” cases of 18 year old boys having sex with their 15 year old girlfriends)? Political expediency? Both? Who knows….what is clear is that hundreds, maybe thousands, of people (mainly men) are being charged with very serious felonies when they should not be.

In this case it was a bitter ex-girlfriend who made it very clear that she would do and say most anything to put my client in prison. I was able to prove that she had lied in court on numerous occasions, and actually hatched a plan to get rid of my client months before she turned the computer over to the police.

If anyone doubts the importance of an experienced defense attorney in our system of justice – go ask my client!

John A. Birdsall, Attorney at Law
Birdsall Law Offices, S.C.
135 W. Wells St., Suite 214
Milwaukee, WI 53203
414-831-5468 – Fax
414-831-5465 – Telephone
800-257-4799 – Toll Free
www.birdsall-law.com