Sentencing Law and Policy

"Poll Shows Oregonians Still Support Capital Punishment"

The title of this post is the headline of this local article from the Beaver State.  The piece starts and ends this way:

Governor John Kitzhaber raised the issue of Oregon's death penalty this winter, when he placed a moratorium on executions for the rest of his tenure. He urged Oregonians to "find a better solution."

But now, a new poll by OPB and DHM Research shows that most Oregonians favor the death penalty.... The poll found that 57 percent favor the death penalty for some crimes; 39 percent oppose it. Four percent say the don't know.

Su Midghall, lead pollster for DHM Research, says those numbers haven't moved in a while. "Historically, Oregonians haven't changed a lot in their support for the death penalty. It was high 10 years ago, meaning over a majority then, it's still over a majority today."

The telephone survey polled 500 people throughout Oregon. It was conducted last week, and has a margin of error of plus-or-minus 4.4 percent.

The poll found you could make some predictions about who supports and who opposes executions. "More men and more Republicans favor the death penalty and they do tend to be outside of the urban core.  Let's look at it from the other angle though, the ones who are most opposed.  They're college educated female Democrats," according to Midghall.

Those two groups make up the people who say they "strongly" favor or oppose the death penalty.  But Midghall says there's an important group of people in the middle. "We have 60 percent almost of Oregonians who support the death penalty for certain crimes.  Half of that, so about 30 percent are soft in their support, meaning with additional information they could be persuaded to look at things differently."...

A discussion is just what Governor Kitzhaber asked for when he issued a temporary reprieve in November, stopping the execution of murderer, Gary Haugen.  In an interview that will run on OPB's Think Out Loud Wednesday Kitzhaber reacted to the OPB DHM poll that shows a majority of Oregonians support capital punishment.

The governor explainied his actions, "I didn't abolish the death penalty. I didn't commute the sentences of everyone on death row to life in prison, which I could have done.  I simply stayed the execution of Mr. Haugen and made it clear that I'm not going to carry out that sentence during my term in office.  With the hope of fostering a discussion about the death penalty.  A, whether we still want it.   And B, if we do want it, whether the way the death penalty is set up in Oregon is really what people thought they were voting for back in 1984."  That's when Oregonians reinstated capital punishment.

Latest litigation news over controversial pardons in Mississippi

This local article, headlined "Justices may eye pardons; Attorney for former inmates hopes to halt nullification effort," reports on the basics of the brewing litigation over some of the controversial pardons that former Mississippi Gov Barbour issued on his way out of office.  Here is how the piece starts:

Attorneys on both sides of the battle over former Gov. Haley Barbour's pardons are criticizing each other for distracting from the central constitutional issue with unimportant, unsubstantiated claims.

Tom Fortner, the attorney for four of the five pardoned criminals who worked as trusties at the Governor's Mansion, filed a petition Monday asking the Mississippi Supreme Court to give immediate consideration to the case, through which the attorney general's office aims to overturn most of the 203 pardons Barbour granted during his two terms. A hearing is scheduled before Hinds County Circuit Court Judge Tomie Green at 1 p.m. Friday.

Fortner hopes to stop Green from moving forward because he said it's not constitutional for a judge to review a governor's pardon power. If Green overturned the former trusties' pardons Friday, they could land back in prison. Fortner said Hood "doesn't understand constitutional separation of powers - and he doesn't want to understand it because if he does, he loses."

Attorney General Jim Hood leveled a similar charge against his legal adversaries in a news release Monday. "This is a sideshow by Tom Fortner and the former governor to divert attention from the fact that (Barbour) has loosed his favored murderers upon the public without any legal authority to do so," Hood said.

The constitution requires an applicant to publish a notice in a newspaper for 30 days before a pardon is granted. Whether those publications were handled properly is the basis for Hood's argument to overturn the pardons.

This is interesting litigation not only because of most courts' justifiable disinclination to take on cases concerning clemency powers, but also because a broad ruling in favor of the state AG against the pardoned defendants might possibly raise even some federal constitutional concerns that perhaps could be appealed to SCOTUS.

Notable recent state child porn sentencing developments in South Dakota

Thanks to this brief new AP article, which is headlined "South Dakota child pornography convict gets 100-year prison sentence cut about in half," I learned about a fascinating ruling from last year by the South Dakota Supreme Court in South Dakota v. Bruce, 2011 S.D. 14 (SD April 6, 2011) (available here).

Working backwards, here is the latest sentencing news in this notable case:

A 100-year prison sentence handed down to a Pierre man convicted of possessing child pornography has been cut about in half.  The South Dakota Supreme Court last year ruled that the initial sentence for 48-year-old Troy Bruce was excessive and ordered a new sentencing.

KCCR radio reports that Judge Mark Barnett on Tuesday sentenced Bruce to a total of 55 years in prison.  Bruce will be eligible for parole after serving one-fourth of the sentence. He also was given credit for about two years he already has served behind bars.

This report prompted me to wonder if the South Dakota Supreme Court had actually deemed a child porn sentence to be unconstitutional, and the Bruce ruling nearly does.  Here are notable snippets from the majority opinion in Bruce:

Bruce was convicted of possessing one DVD containing fifty-five videos of child pornography.  He received the ten-year maximum sentence on all fifty-five counts.  Forty-five of the sentences were suspended, but the sentences on the remaining ten counts were to be served consecutively resulting in a total sentence of 100 years.  Bruce contends that this sentence was cruel and unusual punishment under the Eighth Amendment....

When such statutory ranges are established, the legislative intent is that "the more serious commissions of [the] crime . . . deserve sentences at the harsher end of the spectrum.... Imposing the maximum possible term where the circumstances of the crime only justify a sentence at a lower range violates legislative intent to reserve the most severe sanctions for the most serious combinations of the offense and the background of the offender.” Bonner, 1998 S.D. 30, ¶ 25.   Further, we now adopt Justice Konenkamp’s recommendation “that courts look at two additional determinants when assessing the seriousness of a child pornography offense: (1) the specific nature of the material and (2) the extent to which the offender is involved with that material.” Blair, 2006 S.D. 75, ¶ 83....

With respect to the seriousness of this offense, the pornography involved much more than lewd images but less than the worst possible material covered by the statute....

With respect to Bruce’s involvement, he was convicted of possessing the one DVD containing fifty-five images. Although thirty other discs containing child pornography images were found, the court “consider[ed] Counts 1 through 10 as one act” for the purpose of determining parole eligibility. Additionally, there was no evidence that Bruce manufactured or distributed child pornography. Finally, there was no evidence suggesting that Bruce had ever sexually abused a child, had sexual contact with a child, or solicited a child for sexual images. This was a case of simple possession of images.

Bruce’s character and history reflect that he was a divorced forty-eight year old with three children, one who was still a minor. Other than a careless driving offense, Bruce had no prior criminal history. He was a former member of the National Guard and a veteran who had served in Saudi Arabia and Iraq during Operation Desert Storm....

Bruce’s maximum sentences were not reserved for the most serious combination of criminal conduct and background of the offender. We therefore conclude that this is the exceedingly rare case in which Bruce’s sentence was grossly disproportionate to the “particulars of the offense and the offender.” See Bonner, 1998 S.D. 30, ¶ 25. Because Bruce did not present comparative information with which to conduct an intra- and interjurisdictional analysis, we reverse and remand to the circuit court to consider that evidence on resentencing.

A concurring opinion in Bruce adds these notable observations:

In South Dakota, gross disparity in the sentence length for possession of child pornography exists.  For example, in State v. Martin, 2003 S.D. 153, 674 N.W.2d 291, the defendant’s sentence for possession of child pornography was a term of two years in the penitentiary with all but forty-five days in jail suspended subject to additional conditions. In the present case, the aggregate sentence is a term of 100 years in the penitentiary. Yet the facts of the two cases are similar: both involve the possession but not the manufacture or distribution of multiple computer-based images of child pornography. The difference in the length of the sentences for these similar crimes is shocking.

I think it is safe to assert that, not just in South Dakota, but all across this great nation, "gross disparity in the sentence length for possession of child pornography exists."  I have seen and heard of many state (and few federal cases) in which a child porn possession conviction results in only months in prison, and yet a few months ago in Florida (as reported here) Daniel Enrique Guevara Vilca received a sentence of life without the possibility of parole for mere child porn possession!  What a sad and disturbing mess.

"Pot legalization efforts forge ahead in key states"

The title of this post is the headline of this new Reuters article, which gets started this way:

Efforts to legalize marijuana for recreational use are gaining momentum in Washington state and Colorado, despite fierce opposition from the federal government and a decades-long cultural battle over America's most commonly used illicit drug.

Officials in Washington state on Friday said an initiative to legalize pot has enough signatures to qualify for the ballot in November.  In Colorado, officials are likely this week to make a similar determination about an initiative there.

Supporters are prepared to possibly spend millions of dollars ahead of the November ballot, when they hope a strong voter turnout, particularly among youth, for the U.S. presidential election will aid their cause. "Whether it's make or break depends on what public opinion does after 2012, but in terms of voter turnout this is the best year to do it," said Alison Holcomb, director of New Approach Washington, the initiative's sponsor.

While 16 states, including Washington and Colorado, along with the nation's capital, now allow marijuana use for medical purposes, cannabis remains an illegal narcotic under U.S. law - and public opinion is sharply divided on the merits of full legalization.

California voters turned back a ballot initiative to legalize marijuana for recreational use in 2010, in part because of concerns about how production and sale of the drug would be regulated.

Since then, the U.S. Department of Justice has cracked down on medical cannabis operations in California, Washington state and elsewhere, raiding dispensaries and growing operations and threatening landlords with prosecution.

Some recent and older related posts:

• "Record-High 50% of Americans Favor Legalizing Marijuana Use"
• Notable new pot legalization poll numbers from two states
• GOP candidate Ron Paul assails Obama pot policy and garners applause calling federal drug war "a total failure"
• "Presidential candidate to Obama: end drug war & pardon jailed marijuana users"
• New Huff Post pieces on presidential pot policy and politics
• Two state govs request that feds reclassify pot to ease medical use
• "Marijuana questions dominate White House online chat -- again"

New DOJ memo makes all illegal re-entry defendants "eligible" for fast-track departure!

Huge (and complicated) federal sentencing news has just emerged today from the US Justice Department via this new memorandum, dated January 31, 2012, from Deputy AG Cole to all United States Attorneys with the subject line of "Department Policy on Early Disposition or 'Fast-Track' Programs."  Here is the start of this memo -- which I will start calling the Cole Fast-Track Memo -- and the key paragraphs explaining the significant DOJ policy change that this memo represents:

In the 1990s, United States Attorneys’ Offices and the Department developed early disposition or “fast-track” programs as a matter of prosecutorial discretion to handle increasingly large numbers of criminal immigration cases arising along the southwestern border of the United States. The Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (“PROTECT Act”), Pub. L. No. 108-066, 117 Stat. 650, Apr. 30, 2003, harmonized these programs with the departure provisions of the federal Sentencing Guidelines. More specifically, the PROTECT Act directed the Sentencing Commission to promulgate a statement by October 27, 2003, authorizing downward sentence departures of no more than four levels as part of an early disposition program authorized by the Attorney General and the United States Attorney.  See Pub. L. No. 108-21, § 401(m)(2)(B), 117 Stat. 650, 675 (2003).

This memorandum sets forth the revised policy and criteria for fast-track programs....

On September 22, 2003, then-Attorney General Ashcroft issued a memorandum setting forth the criteria to be used by United States Attorneys’ offices (USAOs) seeking to establish fast-track programs.  Since this memorandum was issued, the legal and operational circumstances surrounding fast-track programs have changed. Fast-track programs are no longer limited to the southwestern border districts; rather, some, but not all, non-border districts have sought and received authorization to implement fast-track programs. The existence of these programs in some, but not all, districts has generated a concern that defendants are being treated differently depending on where in the United States they are charged and sentenced.

In addition, the Sentencing Guidelines are no longer mandatory, and federal courts of appeals are divided on whether a sentencing court in a non-fast-track district may vary downwards from the Guidelines range to reflect disparities with defendants who are eligible to receive a fast-track sentencing discount.  Because of this circuit conflict, USAOs in non-fast-track districts routinely face motions for variances based on fast-track programs in other districts. Courts that grant such variances are left to impose sentences that introduce additional sentencing disparities.  In light of these circumstances, the Department conducted an internal review of authorized fast-track programs.  After consultation with the United States Attorneys in both affected and non-affected districts, the Department is revising its fast-track policy and establishing uniform, baseline eligibility requirements for any defendant who qualifies for fast-track treatment, regardless of where that defendant is prosecuted.

This outcome is consistent with the Department’s position on the Sentencing Guidelines as a means to achieve reasonable sentencing uniformity, and with Attorney General Holder’s memorandum on charging and sentencing, which states that persons who commit similar crimes and have similar culpability should, to the extent possible, be treated similarly....

Districts prosecuting felony illegal reentry cases should implement this new policy no later than by March 1, 2012. This will provide any needed transition, especially for those districts without fast-track programs currently in place.

For those who defend illegal immigration cases, particularly in districts without an authorized fast-track programs and without circuit law blessing fast-track variances, this is huge and great news because it means that defendants there are now potentially eligible for a sentencing discount that was not previously available.  However, for those who were previously able to get the benefit of some looser fast-track policies (which in some districts applied even to non-immigration cases), this memo may actually take away more than it gives.

This important new DOJ memo/policy and its potential ripple effects are too big for me to get my head around right now, in part because immigration offenses make up the largest percentage of the federal criminal docket and in part because fast-track departures have long been the most opaque facet of this docket.  The latest USSC data, for example, reports that in the last fiscal year (FY 2011) there were more than 28,000 federal criminal immigration cases, among which there were more than 7,500 fast-track departures and more than 2,500 variances.  The FY 2011 data also show that there were over 1,400 fast-track departures in non-immigration cases (almost all in drug trafficking cases). 

So, if I fully understand the likely impact of Cole Fast-Track Memo, for FY 2013 when this new policy is fully implemented, we should expect around 10,000 fast-track departures per year in immigration cases and zero fast-track departures in all other kinds of federal criminal cases.  Put another (perhaps more tangible) way, this new Cole Fast-Track Memo will mean 50+ immigration cases and 25+ drug cases each an every week will be processed (and reflected in federal sentencing data) quite differently.  Of course, all of this new case processing might not mean significant changes in final sentences, though big changes in the sentencing process often ends up resulting in at least some important changes in sentencing outcomes.

In subsequent posts, I will comment more on this policy change and praise DOJ for it.  Until then, I would be especially grateful to hear comments from those "on-the-ground" about what they expect this new DOJ memo/policy might mean for federal case processing and federal sentencing policy.

"Is Ohio Keeping Another Innocent Man on Death Row?"

The question in the title of this post is the headline of this potent new piece from The Atlantic and authored by Andrew Cohen.  Here is how it begins: 

Last year, the execution of Troy Davis captured most of the attention, and generated most of the debate, on the topic of capital punishment in America. Davis was put to death by lethal injection in Georgia three quarters of the way through a year that saw a general decline in support for (and implementation of) the death penalty. This year, just a few weeks in, there's an early candidate for such a spotlight: a death row inmate in Ohio whose case raises many of the same questions about fair trials and justice that surrounded the Davis case.

In fact, you could argue that the capital murder case against Tyrone Noling is even weaker than the one against Troy Davis. And you could argue that the capital punishment regime in Ohio is just as arbitrary and capricious as it is most anywhere else. In 1996, Noling was convicted of murdering Cora and Bearnhardt Hartig, an elderly couple, at their home in 1990. At first, though, there was no physical evidence linking Noling to the crime. Not a gun. Not any blood. Not any money or loot. And at first, there were no witnesses against him, either.

Frustrated prosecutors then gave the case to an investigator named Ron Craig and everything changed. Noling was indicted in 1992, but prosecutors soon had to drop the charges against him after he passed a polygraph case -- and after his co-defendant at the time changed his mind and refused to incriminate him. Just so we are straight, in 1992, there was no physical evidence linking Noling to the crime, he had passed a lie detector test, and witnesses were already turning on the investigator.

But a few years later -- under threat from Craig, they now say -- a few folks stepped forward to testify against Noling. They placed him at the crime scene and they testified that he had confessed to killing the Hartigs. Noling's jury deliberated for about day before returning guilty verdicts. Noling was quickly sentenced to death. The state's website duly notes that Noling arrived at its death row on February 21, 1996. He has maintained his innocence ever since.

Fascinating AP update on efforts by "Amy" to get restitution from child porn downloaders

This new AP article, headlined "Court to weigh restitution for child porn victim," reports on the news I covered in this post last week, namely that the Fifth Circuit has called for en banc review of whether and how federal law permits a child depicted in illegal porn to secure a restitution award in the sentencing of an offender who only downloaded that child's image. The AP article adds important back-story to the story with this accounting of the child's partial success in obtaining restitution to date:

A federal appeals court in New Orleans has agreed to rehear two cases in which a victim of child pornography sought restitution from men who viewed sexually explicit photographs of her on the Internet. The victim in both cases, who is identified only as a woman named "Amy," was a young child when her uncle sexually abused her and widely circulated images of the abuse, according to court records....

Amy, now a woman in her early 20s living in Pennsylvania, has filed more than 700 requests for restitution across the country since 2009, collecting more than $1.5 million from dozens of individuals, according to James Marsh, one of her attorneys.

The National Center for Missing and Exploited Children says its analysts have found more than 35,000 images of Amy's abuse among the evidence in more than 3,200 child pornography cases since 1998.

Under the Crime Victims Rights' Act, Amy sought more than $3.3 million in restitution from Paroline to cover the cost of her lost income, attorneys' fees and psychological care.

The AP article also reports that the full Fifth Circuit will not hear argument in the case until May, which in turn means it is unlikely we will get a ruling from the en banc court until probably the fall at the earliest.

NPR covers latest debates over post-Booker federal sentencing systems

This new piece featured as part of NPR's show Morning Edition, and given the headlined "GOP Seeks Big Changes In Federal Prison Sentences," effectively reviews some of the recent debates in Congress and elsewhere over the current state of federal sentencing.   Drawn from last year's House hearing and a recent ACS panel (in which I had the honor participating), the piece notes that a few folks are vocally complaining about how advisory guidelines are functioning.  Here is how the piece begins:

Every year, federal judges sentence more than 80,000 criminals. Those punishments are supposed to be fair — and predictable.  But seven years ago, the U.S. Supreme Court threw a wrench into the system by ruling that the guidelines that judges use to figure out a prison sentence are only suggestions.

Republicans in Congress say that's led to a lot of bad results. They're calling for an overhaul of the sentencing system, with tough new mandatory prison terms to bring some order back into the process.  Rep. James Sensenbrenner, a Republican from Wisconsin, brought up the subject at a recent hearing.

"A criminal committing a federal crime should receive similar punishment regardless of whether the crime was committed in Richmond, Va., or Richmond, Calif., and that's why I am deeply concerned about what's happening to federal sentencing," Sensenbrenner said.

As astute readers know, the "wrench" thrown into the federal guideline system by the Supreme Court in Booker just happened to be the protections of the Fifth and Sixth Amendments of the Bill of Rights; we could return to the "old" system of mandatory guidelines if and whenever Congress and prosecutors agreed that factors within the guidelines would have to be proven up consistent with the constitutional requirements.  

Sensenbrenner failed to push forward on such a legislative response in Booker (which has been urged by members of the Supreme Court as diverse as Justices Scalia, Souter, Stevens, and Thomas) throughout 2005 and 2006 when the GOP controlled both houses of Congress and the executive branch.  That reality leads me to view much of the recent criticisms as mostly "big bad wolf" huffing and puffing with just false threats to blow down the post-Booker system.

For a more fulsome review of these issues and the broader debate, the extended ACS discussion from which some of this NPR piece is drawn is available at this link.

Some recent related posts about the House hearing and other post-Booker debates:

• Witnesses identified for House hearing on post-Booker federal sentencing
• "Should sentences reflect the will of the public?"
• "Should the USSC publish sentencing data for individual judges?"
• Early reactions to the (too) quick House hearing on post-Booker sentencing
• New paper say there "is no need for a 'Booker fix'; Booker is the fix"
• In DC for event on "The Relevancy and Reach of the U.S. Sentencing Commission"

Lengthy (but below-guideline) federal prison terms for corrupt local PA politicians

This local story, headlined "11 years behind bars for Cordaro, seven years for Munchak," provides a good high-profile example of how severe even below-guideline federal sentences can often be for white-collar offenders.  Here are the basics:

Robert C. Cordaro was sentenced today to 11 years in prison while A.J. Munchak got seven years for extorting kickbacks and other crimes while running Lackawanna County as majority commissioners.

Senior U.S. District Judge A. Richard Caputo ordered Mr. Cordaro jailed immediately. Mr. Cordaro hugged and patted the backs of tearful family members and friends before U.S. Marshals led him out of the courtroom. The judge gave Mr. Munchak until 2 p.m. April 3 to report so he can deal with undisclosed health problems that cropped up last Wednesday and required him to spend days in the hospital....

Judge Caputo gave both men shorter sentences than the sentencing guidelines he outlined. Under the guidelines, Mr. Cordaro could have received between 15 years and eight months and 19 years and seven months.  Sentencing guidelines for Mr. Munchak called for between eight years and one month to 10 years and one month.

Prosecutors sought a 15-year prison sentence for Mr. Munchak and 20 years for Mr. Cordaro.  Mr. Munchak's attorneys asked for no more than three years for him, Mr. Cordaro's lawyers wanted no more than four years for him.

Before the judges sentenced the men, witnesses testified that Mr. Munchak and Mr. Cordaro deserved leniency and mercy. "Please don't let my dad spend the rest of his life in jail. That is not where he belongs," said Anthony Munchak Jr., Mr. Munchak's son.

The former commissioner said listening to his son's testimony was like listening to his euology. "I am begging for mercy," A.J. Munchak said during his 25 minutes of testimony. "I brought shame to my friends. I stained the office of county commissioners." He also spoke about his illness, noting that doctors told him he could have died. Mr. Munchak, who was hospitalized late last week for dizziness and shortness of breath, did not elaborate on his condition during the hearing or afterward in a brief meeting with reporters....

Facing multiple corruption charges, Mr. Cordaro said he has no one to blame but himself, while lamenting financial losses and the effect the scandal has had on his family. "I understand I am here today and have no one to blame (but) myself," Mr. Cordaro said.

Mr. Cordaro asked for the court's mercy for his family and that the court delay his sentencing until the end of March so he can see his son perform in a play. Noting he was a person "of some means," Mr. Cordaro said he has "lost every material possession and asset I own."...

Mr. Cordaro and Mr. Munchak took office as majority commissioners in 2004. Mr. Cordaro lost his bid for re-election in 2007, and Mr. Munchak resigned in June the day after he was convicted on eight of 21 charges at a federal trial. At the same trial, Mr. Cordaro was found guilty of 18 of the 33 counts against him, including extortion, racketeering and money laundering. Both say they're innocent and will appeal.

At the trial, jurors heard from witnesses who testified about paying tens of thousands of dollars in kickbacks to Mr. Cordaro and Mr. Munchak in exchange for lucrative country contracts. Additionally, prosecutors have said both men were implicated in a scheme involving about $1 million in fraud connected to a federal project to build a bus and rail terminal on Lackawanna Avenue in downtown Scranton.

I have not followed this case at all, so I cannot speak to the specifics of the crimes and sentences.  I do still, however, find notable the report that the feds here were apparently seeking an above-guideline sentence of 20 years for Cordaro (who is age 50) and of 15 years for Munchak (who is age 65).  I cannot help but wonder why the feds thought the lengthy guideline ranges were insufficiently severe for these offenders, and I cannot help but note that the sentencing judge apparently concluded that even the guideline ranges were greater than necessary to achieve congressional sentencing purposes.

"Marijuana questions dominate White House online chat -- again"

The title of this post is the headline of this CBS News report, which gets started this way:

President Obama's live, online chat slated for Monday afternoon is intended to focus on issues raised during last week's State of the Union address -- but his online audience seems to be much more interested in marijuana policy.

Following Mr. Obama's State of the Union address, the White House invited voters to submit questions to the president via YouTube. The president plans on answering some of those questions during a 45-minute "hangout" session on on Google's social networking site Google Plus. In the "hangout" session, Mr. Obama will chat from the West Wing with some of the voters who submitted questions. The chat will be streamed live on YouTube and WhiteHouse.gov at 5:30 p.m. ET. 

According to the White House's YouTube page, 133,216 questions were submitted for the discussion (voting is now closed). YouTube visitors could give the questions a "thumbs up" or "thumbs down" rating, and more than 1.6 million votes were cast. 

Sorting the questions by popularity reveals that 18 of the 20 most popular questions, according to YouTube, have something to do with marijuana policy, including the legalization of marijuana use, the cost of the war on drugs and other related issues.

First big hearing on application of NC Racial Justice Act getting started

As detailed in this local article, headlined "Racial bias case begins in Cumberland Co.: Cumberland Co. ruling on 1994 murder case could set precedent," the application of North Carolina's controversial Racial Justice Act is about to get its first in-court examination. Here are the details:

Arguments about a death row inmate's complaint that racial bias played a role in his case are set to begin today in a Cumberland County courtroom, an event that legal scholars across the country are watching.

Marcus Reymond Robinson, a death row inmate for 17 years and five months, is seeking relief from his sentence under the Racial Justice Act, a state law adopted in 2009 that lets judges consider statistics when reviewing racial bias claims.  The hearing in his case, the first of 155 similar complaints filed under the controversial law, could set the tone and parameters for those that follow.

Robinson, 38, was convicted in August 1994 of kidnapping 17-year-old Erik Tornblom, stealing his car and $27, and shooting him to death with a shotgun.  An accomplice, Roderick Williams, 37, was convicted of the 1991 crime in February 1995 and sentenced to life in prison. Robinson and Williams are black.  Tornblom was white.

Robinson claims racial bias played a role in selection of his jury and his death sentence and his attorneys plan to present statistics to bolster their case in the first part of a three-pronged motion for appropriate relief.  If Robinson can prove there was racism in his prosecution or in the county, regional or state judicial systems as a whole, the law specifies that his death sentence will be converted to life in prison without parole.

The hearing comes about two months after an attempt by the Republican-led legislature to gut the historic act, which was approved narrowly along party lines when Democrats were in control.  Gov. Bev Perdue, a Democrat, used her veto power to halt the Republican effort, saying the law, hailed by some as a progressive attempt to address claims of lingering racism in the courts, should be given a chance....

Under the North Carolina Racial Justice Act, one of only two such laws in the country, judges can consider statistical evidence to determine whether racial bias played a significant role in an inmate's death sentence in the county, prosecutorial district, judicial district or the state where the case was heard....

In the Cumberland County case, Robinson argues that prosecutors struck blacks from the jury pool at a much higher rate than whites.  Robinson's jury had nine white jurors, one American Indian and two blacks, according to court filings.  In Robinson's trial, according to his Racial Justice Act claim, prosecutors struck half the blacks eligible for the jury and only 15 percent of those who were not black.

The evidence in the hearing, expected to last two weeks, will probably center on experts discussing a sweeping study of capital cases in North Carolina done by Michigan State University law school researchers.  That study found that qualified black jurors -- those not released for cause, such as their opposition to the death penalty -- were struck by prosecutors at nearly two times the rate as qualified white jurors.  In Cumberland County, they were struck at 2.6 times the rate, according to the researchers.

Prosecutors argue that race is not among their considerations when weighing whether to strike a potential juror.  Cumberland County prosecutors Cal Colyer and Rob Thompson, who declined to discuss the Robinson claim outside the courtroom, have sought information from prosecutors and court documents across the state on why black potential jurors were dismissed from death penalty cases.  They have indicated plans to call prosecutors and judges in an effort to show a different interpretation of the Michigan State University study findings.

But a ruling by Greg Weeks, the Cumberland County senior resident superior court judge presiding over the hearing, is not expected to be the end of the case.  Either side is likely to challenge his ruling in the state Supreme Court, which could stall hearings in all other Racial Justice Act claims until an appeal is decided.

Even then, Robinson's case might not be over.  He also has claimed that racial bias was a factor in the prosecutors' decisions to seek the death penalty against accused murderers, and that the victims' race was a factor in whether juries issued death sentences.

I am very intrigued and pleased to see that these issues are finally getting a full hearing in a North Carolina court.  Uncertainty about the impact of statutory efforts to combat racial disparities in death sentencing -- combined perhaps with concerns about what might be found when looking real hard at the intersection of discretionary prosecutorial decision-making and the capital punishment process -- largely accounts for why so few state legislatures have taken up the Supreme Court's challenge a quarter-century ago in McClesky to respond via statutory reforms to concerns about racially disproportionate death sentencing.  I am quite eager to see how the boldest state Racial Justice Act actually gets applied in North Carolina courts.

Florida's recent stories of crime and punishment reveals broader national tale

This recent AP article from Florida, which is headlined "Fla. prison closings are legacy of wrong guess," provides an interesting and timely read while the political world circles around the Sunshine State.   Here are excerpts:

When Florida's prison system announced it was closing 11 facilities, it flew in the face of conventional wisdom that the state's prison population was high and rising.  If there's room to spare, where have all the prisoners gone?  The short answer is that they never arrived, at least not in the numbers expected.

Policymakers 20 years ago, extrapolating on then-current crime trends, expected an explosion of offenders and started building prisons.  In particular, the early data suggested the rise of "superpredators," a wave of juvenile delinquents that would flood the criminal justice system in the early 2000s.

The wave, however, never happened and crime rates have fallen since 1991. Florida now has excess prison room, about 116,000 beds for 102,000 inmates -- a number that's basically been flat for three years.

Gov. Rick Scott, looking to plug a $1.4 billion budget shortfall, this month decided to shutter seven of the state's 62 prisons and four of its 46 work camps, potentially costing 1,300 workers their jobs.  The initial savings are estimated at $15 million, according to the Department of Corrections.  The department budget is $2.4 billion....

When the prison expansion began two decades ago, it seemed certain more space would be needed. Crime rates had been climbing for 30 years, crack cocaine usage was on the rise and South Florida was in its violent "Miami Vice" period.  The state also eliminated parole for new inmates and required that they serve no less than 85 percent of their sentences.  That also was expected to keep lockups full.

Over the last 20 years, the state opened 38 facilities, which could include prisons, camps or additions to existing facilities, according to records.  The department could not provide total construction costs for those projects.  Jodi Lane, a professor of sociology and criminology at the University of Florida, said fear of rising crime over the decades "sent (policymakers) in a tizzy."...

But ... from 1991 to 2010, Florida saw the per capita major crime rate - including homicide, rape, robbery, burglary, aggravated assault, theft, auto theft and arson - drop by 52 percent, according to FBI statistics. The per capita violent crime rate went down almost 55 percent in that same time. From 2008 to 2010 alone, the overall number of Florida arrests decreased more than 11 percent.

And there are fewer new inmates today, records show. The number of annual admissions to the prison system peaked four years ago at about 42,000, but has been falling since to an estimated 35,000 in the last fiscal year, according to the state's Criminal Justice Estimating Conference.

Florida is not alone. Nationally, total state prison population has remained flat at about 1.2 million over the last decade, according to the U.S. Bureau of Justice Statistics.

Experts haven't yet come up with definitive answers on why fewer people are entering the criminal justice system. The recession seems not to have had an effect: There aren't any significant studies that show a link between higher unemployment and increased crime....

Lane said that by the late 1990s policymakers started realizing just how expensive big prisons were to build and operate. They now prefer less-expensive alternatives such as halfway houses, house arrest, ankle monitors and other things loosely termed "community control," for many offenses, she said. "Plus, we know prison doesn't decrease recidivism," she said. "Prison makes you worse, not better. People don't come out and say, 'I'm never going to commit crime again.'"

Now, the victims of a 20-year-old bad guess are the 1,300 Florida prison employees who might lose their jobs. "I'm not going to guarantee we can place everyone," Corrections Secretary Kenneth S. Tucker has said. He said he's reaching out to other state agencies and county sheriffs to find jobs for corrections workers.

I continue to wish these kinds of important crime and punishment stories would get some attention in the (too?) frequent debates among the persons vying to become president.  On topics ranging from federal involvement in state criminal justice systems to private prisons to LWOP for juvenile offenders to the drug war to the death penalty to the use of clemency powers, there are no shortage of important and timely crime and punishment topics on which the surviving crop of GOP candidates have interesting records.  

I suppose the fact that none of these issues has been discussed at any length in nearly 20 GOP debates is a sign that many believe there is a general contentment with the status quo.  But, if various polls on these issues are to be believed, there are many people still wanting and waiting for hope and change on various crime and punishment fronts.  And I ultimately blame the free-market media for failing during the debates to bring up any of these important topics in a serious and sustained way.

"Should Teens Be Jailed for Sex Offenses?"

The title of this post is the headline of this lengthy recent piece in The Daily Beast, which carries this subheading: "Parents are fighting powerful laws that imprison teens for sex.  Prosecutors say kids should respect the law. Meet one young Romeo who didn't — and spent six years behind bars." The full piece gets started this way:

Francie Baldino, a mother of two from Royal Oak, Mich., can tell you the day she became an activist against America’s sex-offender laws.  It was the day her teenage son went to prison — for falling in love with a teenage girl.  “The prison term was unthinkable,” says Baldino. “He was just a dumb kid.”

Her son, Ken, was an 18-year-old senior in high school when he was arrested for having sex with his girlfriend, a 14-year-old freshman, in 2004.  The age of consent in Michigan is 16.  He got sentenced to a year in jail and three years’ probation.  After that, when the two teens resumed their relationship — violating his probation — he got five to 15 years.

His mother is part of a surprising rebellion that has now spread to all 50 states: parents fighting against sex-offender laws — the very laws designed to safeguard their children. These parents argue that the laws are imposing punishments on their high-school sons that are out of proportion to the crime.

Baldino’s son, for instance, spent more than six years behind bars and today must wear a GPS device the size of a box of butter.  Sometimes, he says, it loses its signal and sets off an alarm.  “That’s really helpful when I’m at work,” says the blue-eyed 26-year-old, who wears stud earrings and works at a door-and-window store.

No one keeps a tally of how many cases fall into this category nationwide. But there is one measure of the scale of the movement: there are now more than 50 organizations — at least one in every state — battling against prosecutions like these.  Baldino’s group is Michigan Citizens for Justice, which she says includes more than 100 parents.  Another group in Michigan, the Coalition for a Useful Registry, has around 150 parents as members, it says.  Organizations in other states report similar numbers.  One of the largest, Texas Voices, claims some 300 parents as members.

The questions are difficult: Should the scales of justice be weighted in favor of the young? Is a sex crime somehow less terrible, if it involves teens?   The cases they are fighting are highly complex, charged with emotion, and rarely black-and-white.  The questions are profoundly difficult: Should the scales of justice be weighted in favor of the young?  Is a sex crime somehow less terrible, if it involves teens?  The judge in the Baldino case, Fred Mester, openly acknowledged the complexities.  Referring to his own high-school days when handing down the prison sentence in 2005, he said, “Half my senior class … were dating freshman girls, and I suspect half of them would be in here today.”

Prosecutors say it’s simple: kids should obey the law, and parents need to keep their children under control.  Paul Walton, a chief assistant prosecutor in Michigan, says Baldino’s son had only himself to blame: he was an adult, and he chose his own actions. “The court isn’t imposing restrictions because it’s fun — it’s the law,” Walton says.  “You can disagree on the age of consent, but the law says that prior to that age, a person doesn’t have the ability to consent.”

Documentary on US drug war wins top prize at Sundance Film Festival

If I was a truly shrewd and savvy blogger, I would have figured out a way to go to this year's Sundance Film Festival and call it a work trip because of the screening of a new documentary on the US drug war titled "The House I Live In."  Instead, I am home just blogging about the news that this documentary won the top prize at Sundance for documentaries. This review from The Hollywood Reporter suggests reasons why the film has been well-received and why I am now extra eager to find a place to see it soon:

A potent cry for a drastic rethinking of America's War on Drugs, Eugene Jarecki's The House I Live In synthesizes many fairly familiar arguments, and some that are less so, into a case for viewing U.S. policies as a war on the lower class.  Balancing big-picture stats with personal perspectives, it should connect solidly with viewers at a moment when it seems possible to change public attitudes....

Working methodically, Jarecki's nearly two-hour film views the war from a number of perspectives too great to summarize here.  Crucially, while he speaks to academics who have long argued for drug-law reform, he also goes to those most directly involved in enforcing the laws: a U.S. District Court judge in Iowa, an Oklahoma corrections officer who's an avowed law-and-order man; numerous narcotics officers.  They tell him variations of the same thing: Our laws aren't working to decrease drug use; we're putting too many people away for too long and doing too much harm to their families.

Jarecki might have considered giving a co-writing credit to The Wire's David Simon, because while other interviewees offer damning stats and compelling perspectives, Simon returns throughout the film to crystallize big issues.  Describing an under-discussed side effect of the drug war, in which overtime pay goes to cops who make easy possession arrests while those spending their time on hard-to-solve violent crimes go unrewarded, he says our policy "makes a police department where nobody can solve a fucking crime."

Many of these statistics have popped up here and there in public discourse, and are simply being gathered into a digestible, infuriating package.  But House holds eye-opening surprises as well, like an interview with Abraham Lincoln scholar Richard Lawrence Miller: Looking through the history of American drug laws, Miller argues that legal substances were frequently demonized only when it became clear that making them illegal could help keep a threatening minority in check. (For example, Miller cites opium laws on the West Coast directed at Chinese immigrants.)

NAACP head recognizes Tea Party favors some progressive criminal justice reforms (and sometimes more than Democrats)

A helpful reader alerted me to this little piece from Slate with an interesting Q+A with Ben Jealous, the head of the NAACP, in the wake of this past week's State of the Union Adresss.  Here is the particular Q and A that I found especially blog-worthy:

Slate: Ron Paul answered a question about his old newsletters by saying he was the most anti-racist candidate: He wanted fair criminal justice reform. Did you buy it?

Jealous: We've found common cause with libertarians across the South, for years. In Texas, Ron Paul's state, we've passed a dozen progressive criminal justice reforms last year, working with the Tea Party.  In South Carolina we got one-to-one on crack versus powder, which we couldn't get Congress to do when Democrats controlled it.  In Georgia, we just pushed through the biggest review of criminal justice policy in the entire country, again, working with a Tea Party governor and Tea Party supporters.  Criminal justice reform is, if you will, the big silent agreement in this country.  It's ideas like treatment instead of incarceration appeal from libertarians to liberals alike, to progressives and conservatives alike.

If you divide the Tea Party, it divides into three groups: The libertarians, the fiscal conservatives, and the social conservatives.  And when you go them and say rehab is seven times more effective than prison, they pay more attention.  The pot-smoking wing pays attention.  The Christian conservatives, who are very involved in prison ministry, already know it.  So Ron Paul has a point that policies he is promoting, on criminal justice reform, are policies that need to be discussed and would have a positive impact on the black community.

Fifth Circuit to review en banc restitution sentences for child porn downloaders

As effectively detailed here at How Appealing, the Fifth Circuit issued two orders earlier this week in which it has called for en banc review of whether and how federal law permits a child depicted in illegal porn to secure a restitution award in the sentencing of an offender who only downloaded that child's image.  Interestingly, these cases had been decided by Fifth Circuit panels back in early 2011; one might speculate that there was an extended debate within the Fifth Circuit before it finally decided to rehear these cases en banc.

Absent congressional changes to applicable law, the issue of restitution awards in child porn downloading cases seems likely eventually to get to the US Supreme Court.  Consequently, I would expect an even further appeal in these cases no matter what the Fifth Circuit ultimately rules when considering this matter as a full court.

Some related recent federal child porn restitution posts:

• Eleventh Circuit publishes (first?) circuit opinion affirming restitution in sentencing of child porn downloader
• Fifth Circuit rules in child porn case that no proximate causation needed to get restitution under CVRA
• Fifth Circuit panel questions another panel's recent ruling on child porn restitution sentencing
• DC Circuit weighs in on host of challenging child porn restitution issues
• Ninth Circuit essentially demands Congress amend restitution law to allow victims to recover from child porn possessor
• Federal sentence for receiving child porn includes forfeiture of home
• Federal judge imposes large restitution punishment for downloading child porn
• Notable report on latest developments in federal restitution awards in child porn downloading cases
• New student note on restitution sentences for child porn downloaders
• Second Circuit panel reverses child porn restitution award to "Amy"
• "Avenging 'Amy': Compensating Victims of Child Pornography Through 18 U.S.C. § 2259"

"Capital Punishment and Contingency"

The title of this post is the title of this interesting new piece by Professor Carol Steiker, which reviews David Garland's recent book on capital punishment titled "Peculiar Institution: America’s Death Penalty in an Age of Abolition."  Here is a brief summary of the piece via SSRN:

This book review of David Garland’s “Peculiar Institution: America’s Death Penalty in an Age of Abolition,” assesses Garland’s contributions both to the literature about the American death penalty and to the broader debate about the nature and causes of American penal exceptionalism. Garland’s perspective is considered in light of the work of James Whitman, Franklin Zimring, Michael Tonry, Nicola Lacey, and William Stuntz.  After situating Garland in the larger conversation, the review goes on to illustrate and deepen Garland account of the contingency of America’s recent death penalty story by imaging three counterfactual (and extremely divergent) American death penalty stories-that-might-have-been.

New NY Times report digs deeper into Mississippi pardon spree by Haley Barbour

This lengthy new piece in the New York Times, which is headlined "Many Pardon Applicants Stressed Connection to Mississippi Governor," provides some additional information about links between outgoing Gov. Haley Barbour and many offenders who received clemency via his pen. Here is an excerpt:

In the furor the followed Mr. Barbour’s clemency decisions — including more than 10 times as many full pardons as his four predecessors combined — beneficiaries like Mr. Vann have largely been overshadowed by others with higher profiles or more obvious connections. Among them were four murderers who had worked at the governor’s mansion; Brett Favre’s brother, who had killed a friend in a drunk driving incident; and Karen Irby, a Jackson socialite who killed two young doctors while driving drunk in 2009.

A close look at some of the clemency applications of nearly 200 of the other felons who were pardoned reveal that a significant share contained written appeals from members of prominent Mississippi families, major Republican donors or others from the higher social strata of Mississippi life.

The governor erased records or suspended the sentences of at least 10 felons who had been students at the University of Mississippi and Mississippi State when they were arrested, including at least three who killed people while driving drunk and several others charged with selling cocaine, ecstasy and other drugs.  Another pardon went to the grandson of a couple who once lived near Mr. Barbour’s family in his hometown, Yazoo City.

One beneficiary, Burton Waldon, had killed an 8-month-old boy in an alcohol-induced crash in 2001.  Mr. Waldon, a high school senior at the time, pleaded guilty and received a suspended sentence.  He is a member of the prominent Hill Brothers Construction Company family, big-money political donors who give mostly to Republicans, including Mr. Barbour.  An uncle of Mr. Waldon, Kenneth W. Hill Sr., sought and received a pardon from President George W. Bush in 2006, erasing a federal income tax conviction.

Mr. Barbour declined to comment on the pardons, but a spokeswoman said that every application had been treated alike.  “If you were poor or rich, you were told to go through the parole board process,” said the spokeswoman, Laura Hipp.

Ms. Hipp said that in roughly 95 percent of the cases, the governor went along with the majority recommendation of the five-member parole board he had appointed to review the requests.  In some cases, the governor granted pardons that were unanimously opposed by the board.  Grants of clemency are solely at the governor’s discretion, and he is not obligated to give his reasoning.

Recent related posts:

• On way out door, Mississippi Gov. Haley Barbour pardons five serious offenders who worked at the Governor's Mansion 
• "Did Haley Barbour's pardon spree go too far?"
• Mississippi state judge blocks some of out-going Gov. Barbour's controversial pardons
• "Barbour ‘At Peace’ with Pardons, but Scandal Rages On"
• Former Gov Haley Barbour explains "Why I released 26 prisoners"

New major report documents costs and concerns with aging prison populations

Human Rights Watch has today released a major new report on US prison populations titled “Old Behind Bars: The Aging Prison Population in the United States." HRW visited nine states and 20 prisons to gather information for the report, which can be accessed via this link (along with a lot of companion materials). Here is an excerpt from the report's summary:

Life in prison can challenge anyone, but it can be particularly hard for people whose bodies and minds are being whittled away by age.

Prisons in the United States contain an ever growing number of aging men and women who cannot readily climb stairs, haul themselves to the top bunk, or walk long distances to meals or the pill line; whose old bones suffer from thin mattresses and winter’s cold; who need wheelchairs, walkers, canes, portable oxygen, and hearing aids; who cannot get dressed, go to the bathroom, or bathe without help; and who are incontinent, forgetful, suffering chronic illnesses, extremely ill, and dying.

Using data from the United States Bureau of Justice Statistics (BJS), Human Rights Watch calculates that the number of sentenced federal and state prisoners who are age 65 or older grew an astonishing 94 times faster than the total sentenced prisoner population between 2007 and 2010.  The older prison population increased by 63 percent, while the total prison population grew by 0.7 percent during the same period.

Some older men and women in prison today entered when they were young or middle-aged; others committed crimes when they were already along in years.  Those who have lengthy sentences, as many do, are not likely to leave prison before they are aged and infirm. Some will die behind bars: between 2001 and 2007, 8,486 prisoners age 55 or older died in prison.

This report is the first of two that Human Rights Watch plans to issue on the topic of elderly prisoners in the US.  It presents new data on the number of aging men and women in prison; provides information on the cost of confining them; and based on research conducted in nine states where prisons vary significantly in size, resources, and conditions, offers an overview of some ways that prison systems have responded to them. The report tackles some policy considerations posed by incarcerating elderly inmates, and raises the human rights concerns that must be addressed if sound policies are to be developed for the criminal punishment and incarceration of older prisoners, both those who grow old in prison and those who enter at an advanced age.

Prison officials are hard-pressed to provide conditions of confinement that meet the needs and respect the rights of their elderly prisoners.  They are also ill-prepared — lacking the resources, plans, commitment, and support from elected officials — to handle the even greater numbers of older prisoners projected for the future, barring much needed changes to harsh “tough on crime” laws that lengthened sentences and reduced or eliminated opportunities for parole or early release.

Some prior related posts on older prisoners: 

• "Aging Prisoners, Increasing Costs, and Geriatric Release"
• What should Florida and other states do with all their old sex offenders?
• Are all states going to need to create old-age prisons?
• "Elderly Offender Home Detention Pilot Program"
• The (medical) costs of long sentences
• More on the (medical) costs of long sentences
• Aging gracefully ... in prison?
• The high costs of an aging prison population
• "Aging inmates straining prison systems"
• The story of prisons becoming nursing homes in Virginia
• Missouri prison breaking in new geriatric wing
• "Older inmate population grows, puts strain on system"

"Big Law's Sixth Amendment: The Rise of Corporate White-Collar Practices in Large U.S. Law Firms"

The title of this post is the title of this new paper available on SSRN from Charles Weisselberg and Su Li. I have long thought the relationship between defense representation and the development of criminal justice jurisprudence is a rich topic that rarely gets examined sufficiently. Consequently, I am looking forward to reading this paper and also am eager to hear others' thoughts on this paper and the topic more generally.  Here is the paper's abstract:

Over the last three decades, corporate white-collar criminal defense and investigations practices have become established within the nation’s largest law firms.  It did not used to be this way. White-collar work was not considered a legal specialty.  And, historically, lawyers in the leading civil firms avoided criminal matters.  But several developments occurred at once: firms grew dramatically, the norms within the firms changed, and new federal crimes and prosecution policies created enormous business opportunities for the large firms.

Using a unique data set, this Article profiles the Big Law partners now in the white-collar practice area, most of whom are male former federal prosecutors.  With additional data and a case study, the Article explores the movement of partners from government and from other firms, the profitability of corporate white-collar work, and the prosecution policies that facilitate and are in turn affected by the growth of this lucrative practice within Big Law.  These developments have important implications for the prosecution function, the wider criminal defense bar, the law firms, and women in public and private white-collar practices.