Crime & Federalism

Mother Jones has this disturbing article about prison conditions:  

Last week I read one of the most shocking posts of my life.  Eugene Volokh, a critical thinker if there ever was one, a person who frequently and poignantly notes the thinking errors people make when discussing issues like free speech, gun control, and sexual assault, wrote something that would earn a Logic 101 student an embarrassing grade.  In a post entitled "Why People Are Skeptical of Judicial Discretion in Sentencing," Volokh does the following:

1.  Demonstrates that one judge has gone off of his sentencing rocker, and
2.  Argues that all judges should have their sentencing discretion cabined.

Since when did careful thinkers like Volokh start crafting global principles (here, that all judges should have their hands tied) based on a single anecdote (here, that a judge has violated his oath to apply to law)?  Volokh does not look at sentencing schemes as a whole, asking whether in light of thousands of appropriate sentences, we as a society should tolerate a few wrong-headed ones.  Nor does he examine whether sentencing "guidelines" would lead to a more just or unjust system.  Instead, he merely says: This judge is nuts, therefore all judges should be shackled.

In his book on legal writing, Volokh devotes a lot of space to critical thinking.  One way to think critically about our arguments, he notes, is to develop "test suites."  We should use a test suite to apply our arguments to other contexts.  This helps us recognize whether our principles are sound. 

Let us apply Volokh's principle (because one judge abuses his discretion, no judge should have discretion) to a couple of other contexts.

1.  In a post about a school shooting, we would entitled a post: "Why People Are Skeptical of Private Firearm Ownership."  We would then note that several children died because a lunatic shot them.  We would then argue that no one should be allowed to own a gun.  We would not look at firearm ownership as a whole, or try to determine whether the costs of firearm ownership (a few tragedies) outweigh their benefits (using firearms to avert more tragedies).  If someone wrote such a post, Volokh would tear it to shreds.  Yet Volokh applies similar reasoning in the sentencing context.

2.  [Ed's note: Someone made this point in Volokh's original post.] In a post about an airplane crash, we would entitle a post: "Why People Are Afraid of Flying."  Would anyone take such a post seriously?

Yet Volokh's sentencing post is no different from those two posts noted above.  Which illustrates one of the major problems of sentencing: If careful thinkers like Volokh become emotional and refuse to critically analyze important sentencing issues, what can we expect from the loose thinkers?  Given that loose thinkers always have (and always will) outnumber careful thinkers, Volokh's post scares me.

When fixing sentences, we as a society are not doing something abstract.  A government regulation that prevents us from, say, speeding, is much different from government action that throws someone into prison.  Should we, willy-nilly, throw people into prison, or subject judges to sentencing guidelines?  Or should we carefully weigh and balance all the options?  I hope that the next time Volokh blogs about a sentencing issue, he will take the latter approach.

This really cool site provides original images from books and newspapers of "18th and 19th century punishments, ranging from extreme embarrassment, through imprisonment and transportation, to death."  Also check out the site's other pages.  The welcome message to the site notes:

This is an audio-visual tour through the darker side of local history as reflected in the documents in the care of the Staffordshire and Stoke on Trent Archive Service and the William Salt Library. You will find out about bad behaviour over four centuries and the responses which it provoked. The experience may not be very edifying, but we hope you will find it informative.

The tour is divided into the five sections shown on the right, each of which contains two or more individual documents. You can take any route you like through the tour, although we recommend that you go through the sections and documents in the order in which they are displayed. Click on one of the headings to begin. And please . . . don’t have nightmares.

Today the Eleventh Circuit handed down an interesting opinion that addressed two Crawford v. Washington issues.  Namely:

(1) whether, under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), a warrant of deportation is testimonial evidence subject to confrontation at trial;
(2) whether, under Crawford, a defendant has a right to confrontation at sentencing.

U.S. v. Cantellano (here).  The panel held that a warrant of deportation is not testimonial:

We are persuaded that a warrant of deportation does not implicate adversarial concerns in the same way or to the same degree as testimonial evidence. A warrant of deportation is recorded routinely and not in preparation for criminal trial. It records facts about where, when, and how a deportee left the country. Because a warrant of deportation does not raise the concerns regarding testimonial evidence stated in Crawford, we conclude that a warrant of deportation non-testimonial and therefore is not subject to confrontation.

Slip op. at 7.  I know nothing about warrants of deportation.  Immigration guys and gals: Does the panel's opinion here make sense? 

Next, the panel holds that a defendant does not have a right to confront his accusers at sentencing, even though the accusations made at sentencing can literally cause the defendant to serve years more in prison.  The panel noted that "the right to confrontation is a trial right," id. at 9, and thus (tautologically), "The right to confrontation is not a sentencing right."  Id. at 10.

Reading the panel's "analysis" reminds me of one of the late Judge Richard S. Arnold's guidelines for opinion writing (paraphrased): "The opinion must be based on reason, not authority.  Strings cites are therefore not preferred."  [UPDATE: I have more on Judge Arnold's methods in this post.]  Read pages 9 and 10 of the slip op., and you'll see why Judge Arnold's death still saddens me.  The panel glosses over what is a very interesting and complicated issue, and opts for string cites rather than persuasive reasoning.

Should prison sentences fit the person, or the crime? How you answer this question will tell me a lot about your sentencing beliefs.  It's probably the single most important thing a criminal lawyer can know about a sentencing judge.  How someone answer this question will determine whether or not she believes in judicial discretion at sentencing - and also whether she supports three-strikes laws (though probably not in the way you think). 

Under the sentence-the-person model, the judge looks at all relevant offender characteristics.  The judge doesn't act like a computer, saying, "The defendant was convicted of x-crime; therefore y-sentence."  Rather, the judge weighs aggravating and mitigating factors.  The judge might ask, "Did the defendant steal the bread to feed his family, or his drug habit," and sentence the defendant accordingly.  Under the sentence-the-crime model, the judge simply looks at the crime in determining sentencing.  "The defendant was convicted of x-crime; therefore, y-sentence."

There's much more to it than this, and each approach has its problems. UPDATE: Doug Berman has this fascinating article exploring how the federal sentencing guidelines attempt to apply both frames to sentencing.  But there seems to be an incongruity among those who follow one model or the other, and their perspective on third-strike laws.

People who, like me, generally support third-strike laws argue something like this: This person has demonstrated that he is unwilling to abide by society's rules.  He's breached the social contract time after time.  This person has done enough damage to society: it's important he be removed before doing further damage.  That sounds an awful like like the sentence-the-person frame, doesn't it?  Yet most third-strike proponents also support mandatory minimums (re: sentence-the-crime frame).

Similarly, those who oppose third-strike laws argue: "Come on, Mike, the guy was caught with a pizza!  How can you send someone to prison for life for stealing a pizza?!"  That sounds an awful lot like the sentence-the-crime model, doesn't it?  Yet the same people who make this argument in the third-strike context will argue to they're blue that a trial judge must not blindly sentence the defendant based on the offense conduct.  Rather, the judge must "sentence the person, not the crime."

This seems like an incongruity.  Is it?  If so, what explains it?

Under the Feeney Amendment, upon a resentencing after remand, the district court is required to apply the Guidelines that were in effect at the time of the original sentencing.  In other words, the defendant is not entitled to the benefit of any later, more favorable, changes in sentencing law.  Does this violate the Ex Post Facto Clause?  No.

[T]he application of the Feeney Amendment to the Bordons’ sentences does not violate the Ex Post Facto Clause. In Hock v. Singletary, this Court explained, “The Ex Post Facto Clause operates not to protect an individual's right to less punishment, but rather as a means of assuring that an individual will receive fair warning of criminal statutes and the punishments they carry.”  The Feeney Amendment requires that the Sentencing Guidelines in place at the Bordons’ original sentencing be applied on remand.

In this case, the Amendment does not impose a greater sentence on the Bordons, but merely declines to grant them a favorable change in the law that occurred after they committed their crime. In Johnson v. United States, the Supreme Court explained that in order to prevail on an ex post facto claim, a defendant “must show both that the law he challenges operates retroactively (that it applies to conduct completed before its enactment) and that it raises the penalty from whatever the law provided when he acted.” The Feeney Amendment does not raise the penalty from what it was at the time the Bordons committed their crime, and therefore does not violate the Ex Post Facto Clause. When the Sentencing Commission revised the guideline associated with money laundering, U.S.S.G. § 2S1.1, it did not indicate that the amendment should be applied retroactively. Accordingly, the district court properly used the 1998 version of U.S.S.G. § 2S1.1 because that was the version of the Guidelines in effect on the date of the Bordons’ previous sentencing, prior to their first and second appeals.

United States v. Bordon (CA11).

On Monday Fox will air the pilot for "Prison Break," a show about a brother who committed a crime in order to go to prison (to help his wrongfully convicted brother escape from prison).  Before "Prison Break" was "Oz."  Almost any night I brave the cess pool, I see numerous specials on prison - purporting to tell, e.g., what it's like inside Riker's Island.  And there are numerous movies set in prison.

Anyhow, why?  What explains American's obsession with prisons?  Most of these programs showcase prison rape.  Is the obession with prison folklore somehow sexual?  People like to joke about prison rape, "Don't drop the soap," etc.  Or is it something non-sexual, but still primative?  Do Americans enjoy specials on prison for the same reason we enjoy watching specials on animals - the element of the untamed amoung us? 

I don't have a clue, so please share your thoughts in the comments.

Today the Eighth Circuit held that the Feeney Amendment's requirement that the government approve of § 3E1.1(b) could not be applied retroactively: the requirement violated the Ex Post Facto Clause. (Details here).  The requirement also violates separation of powers.

The doctrine of separation of powers imposes structural limitations on each branch's exercise of power, is implicit in our constitutional design, and dates back to Montesquieu.  The Founders were intent on creating a Constitution that limited each branch's power because the concentration of the legislative, executive, and judicial power would lead to tyranny. It is the nature of government to accumulate power for itself. By dividing this power, in the words of James Madison, ambition would "be made to counteract ambition."  Certain provisions of the Feeney Amendment allow the executive branch to encroach on the judicial power and should be struck down.

Another issue arising under separation of powers asks whether vesting significant sentencing decisions in the hands of the executive impermissibly abrogates the judicial power. Under the American constitutional system, there is to be a strict separation of powers between each co-equal branch of government. But in practice, "[w]hile people sometimes refer to the three branches of the federal government as a three-lawyer cake, it is more accurate to think of it as a marble cake."[1] Thus, a prosecutor's decision on what charges, if any, to bring will ultimately impact the available options at sentencing.[2] And the prosecution holds almost absolute discretion in this area.

However, the Feeney Amendment conditions the trial court's sentencing decision upon prosecutorial approval. For example, under §5K3.1 the judge may issue an early disposition reduction only "[u]pon motion of the Government" and when "authorized by the Attorney General of the United States and the United States Attorney for the district in which the court resides."[3] Under §3E1.1(b)(1), the trial court may give the defendant an additional base level increase of one only "upon motion of the government [ ]." This conduct seems to confer upon the executive power beyond its proper prerogative and almost amounts to an "executive veto" of judicial sentencing decisions. And like the "legislative veto" Congress improperly reserved for itself in INS v. Chadha, the executive's effort to dictate sentencing decisions should be struck down as unconstitutional.

[1] John E. Nowak & Ronald D. Rotunda, Constitutional Law §3.5 (6th ed. 2000). 
[2] Bordenkircher v. Hayes, 434 U.S. 357 (1978) (finding no Due Process violation when a state prosecutor reindicts on more serious offense when the defendant did not plea guilty to the crime with which he was originally charged.) 
[3] U.S.S.G. §5K3.1.

Huftile was civilly committed under California's Sexually Violent Predator Act after a jury found beyond a reasonable doubt that he was a violent sexual predator.  Huftile sued under 42 U.S.C. Sec. 1983, alleging that the procedures the psychologist used when testifying that Huftile should be committed were invalid.  The issue is whether Heck v. Humphrey bars his suit.  Huftile v. Miccio-Fonseca, No 03-16734 (9th Cir. Jun 10, 2005) (via AL&P).  (By the way, Wilkinson v. Dotson doesn't apply, since Huftile's arguments, namely that the procedures used to confine him were unconstitutional, go to the "fact" of confinement.  Wilkinson v. Dotson does not disturb Heck's rule that one can not litigate, in a Sec. 1983 claim, matters that go to the fact (re: evidentiary basis) of one's confinement.)

Huftile argued that Heck v. Humphrey only applied to prisoners.  This was a good point.  Despite the Ex Post Facto Clause, courts have allowed people who have already been convicted and served their sentences for certain sex-based crimes to nonetheless be returned to prison based on the same conduct.  The fiction is that the commitment is civil, not criminal, and therefore the Ex Post Facto Clause isn't violated.  But the Ninth Circuit panel here doesn't want to treat the fiction as a fiction: they treat Huftile's confinement as half-truth, half-fiction.

Thus, the panel held that the policies behind Heck v. Humphrey applied - and barred - Huftile's suit.

In fairness, the panel holds that Huftile may seek habeas relief.  In other words, Huftile wasn't convicted, and is not a prisoner (since so holding would mean his confinement would violate the ex post facto prohibition), but he can still seek habeas relief.

Putting aside the civil-criminal distinction, it was a balanced outcome.  Though it illustrates the obstacles (rightly or wrongly) sex offenders meet even in courts of law.  Don't get me wrong: I'm no sexual predator apologist.  But if we want them out of society, the solution is longer confinement, not to create legal fictions that are blatant end-runs around the Constitution, and that only apply when it can be used against the predator.

Further finger fornicating the caselaw on what is merely an administrative measure and what is punishment, today a unanimous three-judge panel held that pre-trial detainees can be charged for their confinement.  Slade v. Hampton Roads Regional Jail, No. 04-6481 (4th Cir. May 9, 2005).  Although the cost imposed on those who had not been convicted of any crimes was low ($1/day), it was still a charge.  The power to demand that you pay one dollar is the power to deman that you pay one-hundred dollars.

It's bad enough that the government sets extraordinarily high bail amounts  that ultimately force a defendant to choose between posting bail or retaining his counsel-of-choice.  It's bad enough that someone who poses no threat to the community can be thrown in jail before being convicted.  But now the government can charge someone for his involuntary confinement.  It's like a kidnapper billing a parent for the child's room and board.  "It's not punishment, natch, it's a mere recoupment of costs."