SENTENCING LAW AND POLICY

While I am in the midst of one all-to-common Thanksgiving tradition (awaiting a delayed plane), President George W. Bush today discharged another honored holiday tradition: the annual pardoning of a turkey. This AP story provides the details:

The turkey at the White House really draws a crowd. When President Bush stepped into the Rose Garden on Tuesday, he found visitors in every coveted seat, reporters standing three rows deep and staff members craning for just one good glimpse. They came for one of those signature White House moments: Bush saving the life of a huge, white, gobbling bird.

Bush granted his yearly pardon to the national Thanksgiving turkey, named "May," and a backup turkey who went unseen, who goes by "Flower." The names were chosen in an online poll that drew more than 28,000 votes. It was close; people also liked "Wish and Bone," and "Wing and Prayer." "They're certainly better than the names the vice president suggested, which was 'lunch' and 'dinner,'" Bush said.

Apparently, as detailed here, the press corps also through of the names suggested by the title of my post. And I suspect the Vice President also thought about the similarities between the chief turkeys and his chief of staff.

Some related posts about presidential pardons:

• ACS issue brief on the pardon power
• Bush's reasons for Libby's commutation ... will others now see similar compassion from Bush and his Justice Department?
• Reflections on "Bush the merciful"
• Lots of clemency food-for-thought
• Will former border agents Ramos and Compean get a commutation?
• Clemency and Pardons category index

Lyle Denniston in this post at SCOTUSblog has the big Supreme Court news today:

After a hiatus of 68 years, the Supreme Court on Tuesday agreed to rule on the meaning of the Second Amendment — the hotly contested part of the Constitution that guarantees “a right to keep and bear arms.” Not since 1939 has the Court heard a case directly testing the Amendment’s scope — and there is a debate about whether it actually decided anything in that earlier ruling. In a sense, the Court may well be writing on a clean slate if, in the end, it decides the ultimate question: does the Second Amendment guarantee an individual right to have a gun for private use, or does it only guarantee a collective right to have guns in an organized military force such as a state National Guard unit?

How Appealing has lots of additional coverage here.

As I have suggested in previous posts, if the Supreme Court gets serious about protecting gun rights, I think severe sentences for some minor gun crimes could be subject to a new kind of constitutional attack. But I'm not betting the Justices will get truly serious about protecting gun rights.

As noted in posts here and here, there are plenty of new capital punishment articles to keep one busy this holiday week. But, if you are interested in avoid death while in a thankful mood, here are two new pieces addressing other sentencing -related issues on SSRN that are also worth downloading:

• Judges on Trial: A Reexamination of Judicial Race and Gender Effects Across Modes of Conviction by Brian Johnson

Abstract: Extant research on the effects of judicial background characteristics suggests minimal influence from the race or gender of the sentencing judge in criminal cases. This raises at least two possibilities: 1) the combined influence of judicial recruitment, indoctrination and socialization into the judgeship results in a homogenous body of criminal court judges, or 2) current approaches to identifying judge effects in criminal sentencing have methodological and conceptual flaws that limit their ability to detect important influences from judicial background characteristics. The current paper argues that the mode of conviction shapes the locus of sentencing discretion in ways that systematically underestimate judge effects for pooled estimates of incarceration and sentence length. The empirical results support this interpretation, especially for incarceration in trial cases, where older, female, and minority judges are substantially less likely to sentence offenders to jail or prison terms.

• American Buffalo: Vanishing Acquittals and the Gradual Extinction of the Federal Criminal Trial Lawyer by Frank O. Bowman III

Abstract: This essay is an invited response to Professor Ronald Wright's impressive study of the fact that the acquittal rate in federal criminal trials is declining even faster than the rate of trials themselves, Trial Distortion and the End of Innocence in Federal Criminal Justice, 154 U. PA. L. REV. 79 (2005). The essay concurs with Professor Wright's conclusion that one significant factor driving down both federal trial and acquittal rates is the government's use of the markedly increased bargaining leverage afforded to prosecutors by the post-1987 federal sentencing system consisting of the U.S. Sentencing Guidelines interacting with various statutory mandatory minimum penalties. It offers some additional evidence in the form of statistical data and personal experience supporting that conclusion.

However, the essay goes on to wonder whether Professor Wright's proposed explanations for the disproportionate decline in federal acquittal rates capture the whole story. It suggests that part of the explanation for both the continuing decline of trials and the disproportionate decline in acquittals may be the gradual extinction of true trial lawyers, particularly in U.S. Attorney's Offices. The essay concludes by expressing concern that the decline of trial lawyers may be having deleterious affects on the justice system as a whole.

Thanks to this helpful capital literature review from CDW, I see that Adam Gershowitz has published in the Missouri Law Review this great looking new article entitled "Imposing a Cap on Capital Punishment." Here is the conclusion to give you a sense of what the article argues:

In its three-decade struggle with the death penalty, the Supreme Court has tried and failed to root out arbitrariness. The Court’s efforts have failed largely because it has focused on regulating the procedure of capital punishment, rather than forcing substantive changes in the criminal justice system. To the extent that the Court has dabbled in substantive restrictions, it has chosen poor proxies such as mental retardation and age, which do not force prosecutors to confront the core problem of selecting only the worst of the worst offenders from the outset. A preferable approach would be for the Supreme Court to impose a cap on the number of death-penalty prosecutions that each jurisdiction can pursue each year. Such a cap — if drawn based on the national average of death-penalty prosecutions — would bring outlying jurisdictions into the mainstream, rather than allowing those counties to seek the ultimate punishment in both the worst cases and some borderline cases. Imposing a cap on capital punishment would allow more resources to be devoted to each capital defense and would lower the risk of wrongful convictions. A cap on capital punishment therefore would minimize, though certainly not eliminate, the arbitrariness of the death penalty.

Providing an interesting primer on the uncertain legal rules governing the sentencing process, a split panel today in US v. Christman, No. 06-3266 (6th Cir. Nov. 20, 2007) (available here), vacates a sentence based on a violation of Rule 32. Here is how the opinion starts:

Defendant-appellant Richard Christman pleaded guilty to two counts of a superseding indictment, charging him with the possession of materials constituting child pornography in violation of 18 U.S.C. §§ 2252, 2252A, and 2256. The district court sentenced defendant to 57 months of imprisonment, 3 years of supervised release, a $1,000 fine, and a $200 special assessment. Defendant now timely appeals, claiming that in determining his sentence, the district court improperly relied upon extraneous information obtained from ex parte communications with a probation officer and a pretrial services officer that contradicted record evidence and information contained in the presentence investigation report.

For the reasons set forth below, we hold that defendant’s sentence was imposed in violation of Federal Rule of Criminal Procedure 32, which requires that at sentencing, the court “must allow the parties’ attorneys to comment on the probation officer’s determinations and other matters relating to an appropriate sentence,” and further states that the court “must – for any disputed portion of the presentence report or other controverted matter – rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter at sentencing. . . .” FED. R. CRIM. P. 32(i)(1)(C), (i)(3)(B) (2002). Here, the district court’s admitted reliance upon the ex parte communications, consisting of the probation and pretrial services officers’ subjective impressions that defendant had acted on his pedophilia and in fact had molested children, not only deprived defendant of his right to be sentenced on the basis of accurate and reliable information, U.S.S.G. § 6A1.3, but also foreclosed any opportunity for defendant to comment on and respond to the information, contrary to Rule 32(i).

Because the district court acknowledged three months after the sentencing hearing that were it not for the information not disclosed to defendant, it would have imposed a lower sentence, the error was prejudicial. We therefore vacate defendant’s sentence and remand for resentencing.