Sentencing Law and Policy

"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.

Another Ohio execution postponed due to execution protocol issues

As reported in this local article, headlined "Execution postponed for Ohio man in arson death," the on-going litigation over how Ohio conducts lethal injections has led to the postponement of another scheduled execution date.  Here are the details:

Another Ohio execution has been postponed as state prison officials continue refining lethal-injection protocol to meet a federal judge’s requirements.

With the concurrence of Ohio Attorney General Mike DeWine, U.S. District Judge Gregory L. Frost today issued an order halting the scheduled Feb. 22 execution of Michael Webb, of Clermont County.  Frost also permitted Webb to join a number of other death penalty defendants who are contesting the state’s lethal injection protocol.

DeWine personally participated in a conference call with Frost on the case yesterday, “We felt we had no choice,” DeWine said in an interview. “We’re not going to carry out another execution without it being perfect.”

He said the Department of Rehabilitation and Correction has made “great progress” in refining lethal injection procedures,  “but we’re not quite done with that.”

Frost issued a decision earlier this month that included a scathing criticism of the state for failing to follow its established procedures in the Nov. 15 execution of Reginald Brooks at the Southern Ohio Correctional Facility near Lucasville. He called it a “curiously if not inexplicably self-inflicted wound."

Webb, 63, of Goshen, Ohio, was convicted and sentenced to death for setting fire to the family home, causing the death of his son, Mikey, 3½. Webb contends his is innocent and that someone else ignited the deadly arson fire.

DeWine said the state will continue its appeal to the U.S. Supreme Court in the case of Charles Lorraine, a Trumbull County killer whose Jan. 18 execution was postponed by Frost due to the lethal injection debate.  “These are constitutional issues that have to be pursued,” DeWine said.  “Our procedure is constitutional.”

The statements reported here from Ohio AG DeWine strike me a bit peculiar.  These statements suggest to me that the Ohio officials are right now actively refining its lethal injection procedures, and are making “great progress” in those refinements, but are "not quite done" and will not "carry out another execution" until the process is "perfect."  If this is, in fact, an accurate report of what the state is doing and its plans, I do not quite understand why the state should be pursuing its appeal of the January 18th stay of Charles Lorraine's execution. 

In short, DeWine seems to be saying that the state is responding to the concerns expressed by Judge Frost.  This, in turn, which would seem to counsel just returning to Frost to ask him to vacate the stay once the state gets done with its refinements rather than seeking to have the Supreme Court lift a stay which was concerned with an old (and now-refined) Ohio lethal injections protocol.   Very curious.

Some related posts concerning Ohio's recent lethal injection litigation: 

• Federal district judge finds Equal Protection Clause violated by Ohio's injection processes
• New Ohio lethal injection ruling provides lessons in litigation realities, the rule of law and a law of rules
• Ohio decides not to appeal federal district court ruling in Smith halting execution
• Ohio ready to try to get its machinery of death back in operation
• Federal judge again halts Ohio execution because state not following its own protocol
• Sixth Circuit panel upholds stay of Ohio's next planned execution
• Ohio asks SCOTUS to vacate stay of state execution

House Judiciary member asks AG Holder good (and overdue) questions on pardon process

Over at Pardon Power (where PS Ruckman continues to do great work on the recent Mississippi pardon spree), there is now this notable new post reporting that a "Legislative Assistant in the Office of Rep. Robert C. 'Bobby' Scott (VA-03) -- member of the House Judiciary Committee -- has confirmed that the following questions have been submitted to U.S. Attorney General Eric Holder":

1. You testified when you were confirmed that you would study the problems with the clemency advisory process and fix them. Please let us know what you have found and what changes you have made or plan to make.

2. It has been reported that the pardon attorney no longer assigns commutation cases to staff attorneys, and does not write a recommendation in the large majority of these cases.

3. How does this fulfill the Department's responsibility to advise the president about the merits of each case?

4. Doesn't this make the commutation process meaningless for most applicants?

5. How can the pardon attorney himself conduct a meaningful review of thousands of commutation petitions?

6. Even if most of these should be denied, if no one is really looking at them, how do you know each one is without merit?

7. We can all agree that no system is perfect.  The legal system is no exception.  There are mistakes.  The Constitution gives the president a role in fixing such mistakes.  How does this procedure help the president do that?

8. How does the pardon office identify the rare exception that deserves a closer look? Political support?  Media attention?  If so, is that the best way — the most fair way — to make these decisions?

As the title to this post suggests, I view all of these question to AG holder to be good ones and long overdue.  In addition, I would have added a substantantive query based on DOJ's testimony and recent Congressional work on crack sentencing: "In light of your Department's advocacy for crack and powder cocaine sentences to be equalized, as well as the passage of the Fair Sentencing Act in 2010, has any effort been made to give special attention or review to any commutation petitions filed by persons still serving very long crack sentences who may be able to make an especially convincing claim that their continued incarceration is unfair and serves no continued valid purpose?"

"Georgia chief justice calls for sentencing reforms"

The title of this post is the headline of this recent piece from the Atlanta Journal-Constitution, which gets started this way:

Georgia's chief justice on Wednesday called on lawmakers to enact sentencing reforms that steer nonviolent offenders away from costly prison sentences, saying, "we now know that being tough on crime is not enough."

In a 25-minute address before a joint session of the Legislature, Chief Justice Carol Hunstein asked lawmakers to adopt proposals by the Special Council on Criminal Justice Reform that studied Georgia's sentencing and corrections system.  The state can no longer afford to spend more than $1 billion a year to maintain the nation's fourth-highest incarceration rate, she said.

The initiative, supported by Gov. Nathan Deal and Democratic and Republican leaders, calls for increased funding for drug, mental health and veterans' courts across the state and for other alternatives to prison.  Legislation is being drafted and will be introduced in the coming weeks, said Brian Robinson, a spokesman in the governor's office.  Deal's budget plan already asks for $10 million for new accountability courts.

Hunstein, a member of the special council, said its members "began united in our belief that warehousing nonviolent offenders who are addicted to drugs or are mentally ill does nothing to improve the public safety.  Indeed, in the long run, it threatens it."

Accountability courts address the roots of crime and reduce recidivism, she said.  "If we simply throw low-risk offenders into prison, rather than holding them accountable for their wrongdoing and addressing the source of their criminal behavior, they merely become hardened criminals who are more likely to re-offend when they are released."

In addition to viewing these comments by Georgia's chief justice to be substantively notable, I also find fascinating the tradition(?) of having the state's top jurist address a joint session of the state legislature.  Imagine if there was such a tradition in the federal system: what do folks think Chief Justice Roberts might decided to talk about in an address to Congress?

Cost concerns stressed in pitch to abolish Oregon's death penalty

As reported in this piece in Seattle Weekly, which is headlined "Death Penalty Foes, Backing New Bill, Say Capital Cases Waste Money," a new effort to abolish the death penalty in Oregon is giving extra emphasis to fiscal issues.  Here is how the piece begins (and links to notable reports about capital costs in Oregon):

As [here] reported yesterday, a new effort to abolish the death penalty is underway in the legislature. The debate over the ultimate punishment has been going on for decades, but it's not just about morality any more. Like so many things, it's also about the economy.

Driving to an Olympia press conference yesterday on the bill sponsored by Senator Debbie Regala, criminal defense attorney Mark Larranga spoke to SW about the state budget: "If you're looking for places to trim the fat, the death penalty is the perfect example."

His argument, derived in part from two studies he has has worked on (one for a group that advises lawyers working on capital cases, and another for the Washington State Bar Association) is strictly monetary.  Since the death penalty was reenacted in this state in 1981, it has cost the state "millions and millions of dollars," Larranga says.

Precisely how much is hard to track down, partly because allocations come from different levels of government.  But Larranga points to the recent trial of convicted Kirkland quadruple murderer Conner Schierman.  Taking into account prosecution and public defense costs, he says the trial cost $2.5 million -- and that's not including the cost of appeals.

And yet, for all the money spent, Larranga says the "process has failed" on its own terms. In 30 years, just five people have been executed. Many more have been sentenced to death -- 32 to be precise -- but 17 of those sentences have been reversed on appeal and others have appeals pending.

Some recent and older related posts on the costs of capital punsihment:

• "Death Penalty: Should Cost Be A Factor?":
• Great new (though still dated) examination of the death penalty and plea bargaining
• "Could Abolishing the Death Penalty Help States Save Money?"
• Indiana Attorney General urges examination of death penalty's costs
• Georgia struggles to pay for a costly capital system
• States considering laying off the death penalty during tough economic times
• The economic case against the death penalty getting more and more attention
• More discussion of cost concerns in debates over the death penalty
• Capital case cost concerns continue to inform reform debate
• Still more discussion of the costs of the death penalty
• "Opponents Focus On Cost In Death Penalty Debate"
• NY Times editorial assails "High Cost of Death Row"
• New DPIC report assails costs (and opportunity costs) of death penalty administration
• Is it true that nobody's view on the death penalty can be influenced by its costs? 

"The Price of Prisons: What Incarceration Costs Taxpayers"

The title of this post is the title of this important new (and relatively brief) report from the Vera Institute of Justice, which aspires to provide a complete picture of state prison costs to taxpayers.   Here is the text of the e-mail blast I received about the report:

A newly released study by a team of Vera researchers calculates—for the first time—the full cost of prisons to taxpayers, including costs outside states’ corrections budgets. The Price of Prisons: What Incarceration Costs Taxpayers—published today—shows that in 40 participating states the aggregate cost of prisons in FY2010 was $38.8 billion, $5.4 billion more than their corrections budgets reflected.

Individually, states’ costs outside their corrections departments ranged from less than 1 percent of total prison costs in Arizona to as much as 34 percent in Connecticut.  Detailed fact sheets for each of the 40 participating states are available [at this link].

The Price of Prisons is a joint product of Vera’s Center on Sentencing and Corrections and its Cost-Benefit Analysis Unit, and was conducted in partnership with the Public Safety Performance Project of the Pew Center on the States.

In Florida state court, epileptic gets nine years in prison for driving car

Though the title of this blog post is meant to be (unduly) sensational, this local article provides, as the late Paul Harvey might say, the rest of the sentencing story (which remains quite interesting, but is not quite as extreme as the post headline might suggest):

A Hillsborough county judge sentenced Emilio Santacruz to nine years in prison today for violating the terms of his probation and driving a vehicle.

Convicted of vehicular homicide, Santacruz received no jail time at his initial sentencing in 2004. Instead, he agreed to forgo driving for 15 years. Family members of victim Angie Talty, 79, were upset at the time. It was too light of a sentence, they thought, especially since Santacruz knew he wasn't supposed to be driving. He has epilepsy, and a doctor had told him not to drive.

Then, in late 2011, authorities arrested Santacruz after a Times report uncovered driving citations that showed he had been driving Miami-Dade County. Santacruz, authorities said, had obtained a license in 2008 using a different last name.

Wednesday afternoon, he entered a guilty plea on the probation violation in Hillsborough County court. Tears streaming, he said he couldn't ask for forgiveness. He called his application for a license a "mistake." But he said he did it for his family, to get a job and support his young daughter, Emily.

He said he'd do whatever the Circuit Judge Daniel Perry ordered, but begged the judge to let him go home. "Please, I'm asking you to trust in me for the last time," he said in Spanish, through a translator.

Perry said he faced a difficult decision. He could sentence Santacruz to up to 15 years in prison. The defense asked for a probation modification. Perry settled on nine years, the least under sentencing guidelines.

Ex-HealthSouth Chief Scrushy gets a year off prior sentence at resentencing

As detailed in this local report, a notable white-collar resentencing finished up in federal court in Alabama today. Here are the particulars from the start of the report:

U.S. District Judge Mark Fuller granted a request from Richard Scrushy for a reduced sentence Wednesday, taking a year off the time he was sentenced to serve after being convicted on bribery and corruption charges.

Fuller reduced Scrushy's sentence from 82 months to 70 months, saying he was moved by the former HealthSouth CEO's account of his life in prison -- especially the difficulty of being separated from his wife and children -- while noting his work in prison ministries. "You are a different person today than the one I met in 2005 (at the start of the case)," Fuller told Scrushy just prior to sentencing.  "You have paid a tremendous debt to society."

Scrushy's original release date was June 2013.  His attorney, Arthur Leach, said that Scrushy now qualifies for a halfway house, and could be released from federal prison in Beaumont, Texas within the next 30 to 60 days, depending on the availability of a bed. Scrushy would serve out his remaining time at a halfway house in the Houston area, about 84 miles west of Beaumont.  "What I really can't wait for is for him to be on the front porch of our house and watch our kids ride their bikes home from school," said Scrushy's wife, Leslie, after the hearing. "That's what I can't wait for."

Scrushy and former Alabama Gov. Don Siegelman were convicted in 2006 on bribery and corruption charges related to donations Scrushy made to Siegelman's 1999 campaign for a state lottery.  Scrushy gave the campaign a $500,000 donation, split into two $250,000 checks.  Following the donations, Scrushy was appointed to the Certificate of Need board, which oversees hospital improvements.

Both men have appealed the ruling.  Siegelman, who was sentenced to just over seven years in prison, was released on an appeal bond in 2008.  Scrushy has been incarcerated since being sentenced by Fuller in June 2007.

Intriguing story of federal sentencing guidelines producing disparity

One of many reasons I do not think it always sound or ever truly wise to use non-guideline sentencing decisions as a metric of increases federal sentencing disparity is because there are ways in which the federa; guidelines can sometimes produce disparity.  An interesting example of this reality comes from this recent press report from Alabama, which is headlined "Two Alabama bank robbers, 2 different sentences: Judge laments 'quirk' in federal guidelines."  Here are the details:

Two bank robbers with similar profiles appeared before U.S. District Judge Kristi DuBose in Mobile last week, but due to what the judge termed a "quirk" in the sentencing guidelines, one walked out with a lighter sentence.

Prior criminal convictions earned Jason Paul Davis, 26, the title of "career criminal," under the law, and the DuBose sentenced him to 12 years and 7 months in prison for holding up banks in Selma and Tennessee.

She noted that the other man, William Normer Overstreet, actually has a longer criminal record than Davis.  Like Davis, he threatened a teller during his heist.  Like Davis, he led authorities on a high-speed chase.   And like Davis, he blamed his crime on a longtime drug addiction.

But one of the 48-year-old defendant’s convictions was too old to count against him, so he was not considered a "career criminal" under the guidelines.  The recommended punishment was much less.  "You need to convince me not to go with the government’s recommendation for the highest end of the guidelines," DuBose told defense attorney Larry Moorer, who was in the middle of making his case for leniency.

Citing the punishment she imposed on Davis the previous day, DuBose publicly toyed with the idea of sentencing Overstreet to a prison term longer than the guideline range.  In the end, she settled on a prison term at the top of that range — 9 years and 7 months.

Triple killer in North Carolina taunts he is "gentleman of leisure" of death row

This new AP story from North Carolina, headlined "NC killer's taunt: Death row means leisure," highlights one reason it can be real hard to be a fan of an ineffective (or non-existent) system of capital punishment. Here is how the ugly story begins:

A death row inmate accused of killing three North Carolina women has written a taunting letter to his hometown newspaper, predicting he'll spend many years as a gentleman of leisure, watching color TV and enjoying frequent naps.  "Kill me if you can, suckers," Danny Robbie Hembree Jr. wrote in a letter to The Gaston Gazette [available at this link]....

No one has been executed in North Carolina since 2006 due to a series of legal challenges about the use of lethal injection and whether executions must be overseen by a physician. "Is the public aware that the chances of my lawful murder taking place in the next 20 years if ever are very slim?" asked Hembree, 50.

"Is the public aware that I am a gentleman of leisure, watching color TV in the A.C., reading, taking naps at will, eating three well-balanced meals a day?"   The inmate also pointed out he gets free government health care.

Hembree is on death row at Central Prison in Raleigh for suffocating Heather Catterton, 17, in 2009.  He's also accused of the 2009 killing of 30-year-old Randi Dean Saldana, whose burned remains were found near Blacksburg, S.C.  Hembree admitted to taking drugs and having sex with Catterton and Saldana the day they died, but he told jurors he did not kill them or dump their bodies.

He is scheduled to go on trial in March for Saldana's killing.   He is also charged with killing 30-year-old Deborah Ratchford, whose body was found in a Gastonia cemetery in 1992.

Several commenters on the newspaper's website called Tuesday for Hembree to be put to death immediately.  But some also questioned the decision to give Hembree any further attention.

"Out of 747,408 Registered Sex Offenders, How Many Are Actually Dangerous?"

The question in the title of this post is from the heading of this recent posting by Jason Sollum over at Reason.  Here are excerpts (with links) that explain both clauses of the query:

The National Center for Missing & Exploited Children (NCMEC) reports that the number of registered sex offenders in the United States has increased by nearly a quarter in the last five years. The total in the most recent survey was 747,408, up from 606,816 in 2006, the first year NCMEC did a count....  NCMEC CEO Ernie Allen says registration "is a reasonable measure designed to provide important information to authorities and to help protect the public, particularly children." Yet his group does not say how many of the 747,408 people listed on sex offender registries are predatory criminals who actually pose a threat to public safety, probably because it does not know....

Allen avers that "these registries are especially important because of the high risk of re-offense by some of these offenders" (emphasis added).  As I note in [this July 2011] Reason piece, recidivism rates for sex offenders seem to have been greatly exaggerated. In any case, if protecting potential victims is the raison d'etre for the registries, shouldn't they be limited to people who are likely to commit crimes against others?

Notable new resource from USSC concerning federal sentencing of veterans

I just came across on the US Sentencing Commission's webpage a new document that is an absolute must read for any and every person preparing for the federal sentencing of a military veteran.  Here is the title (with a link) and brief description of the document from the USSC's website homepage:

Case Annotations and Resources: Military Service; USSG §5H1.11 Departures and Booker Variances (January 2012): This document contains case annotations to federal judicial opinions that involve USSG §5H1.11 departures and Booker variances related to a defendant's military service.  It includes an introduction discussing how courts have recognized military service and mental health issues relating to combat service.

Here is an excerpt from the document's introduction:

In considering the relevance of military service to sentencing, courts are confronted with many issues. The length, nature, context, an experience of military service can vary widely. One defendant may have served entirely within the United States, perhaps in an administrative post similar to that of a civilian employee, while another may have served under harsh and dangerous combat conditions abroad. Or, a veteran-defendant may have developed a mental or physical condition while serving in the military, and that condition may have been the result of the military experience and may have contributed to commission of the crime.  Courts have weighed and will continue to weigh various factors in any given case against the goals of sentencing.

Two aspects of military service have been important in cases involving veteran defendants.  First, courts have considered the type of service and whether it warrants consideration based on a traditional practice of recognizing military service to one’s country.  Second, courts have considered whether the defendant suffers from a mental or emotional condition that is traceable to the defendant’s military service and whether the condition contributed to commission of the offense.  Accordingly, this report first takes note of traditional notions of leniency toward veterans, and next discusses some of the mental health and other consequences of military service that may be relevant to sentencing.

"The Caging of America: Why do we lock up so many people?"

The title of this post is the headline given to this extended and thoughtful new article by Adam Gopnik appearing in The New Yorker. The full piece is a must-read, in part because it defies easy labels and lacks many polemics.  Here are a few of many interesting passages:

For most privileged, professional people, the experience of confinement is a mere brush, encountered after a kid’s arrest, say.  For a great many poor people in America, particularly poor black men, prison is a destination that braids through an ordinary life, much as high school and college do for rich white ones.  More than half of all black men without a high-school diploma go to prison at some time in their lives.  Mass incarceration on a scale almost unexampled in human history is a fundamental fact of our country today — perhaps the fundamental fact, as slavery was the fundamental fact of 1850.  In truth, there are more black men in the grip of the criminal-justice system — in prison, on probation, or on parole — than were in slavery then.  Over all, there are now more people under “correctional supervision” in America — more than six million — than were in the Gulag Archipelago under Stalin at its height.  That city of the confined and the controlled, Lockuptown, is now the second largest in the United States....

[I]f, in 1980, someone had predicted that by 2012 New York City would have a crime rate so low that violent crime would have largely disappeared as a subject of conversation, he would have seemed not so much hopeful as crazy.  Thirty years ago, crime was supposed to be a permanent feature of the city, produced by an alienated underclass of super-predators; now it isn’t.  Something good happened to change it, and you might have supposed that the change would be an opportunity for celebration and optimism.  Instead, we mostly content ourselves with grudging and sardonic references to the silly side of gentrification, along with a few all-purpose explanations, like broken-window policing. This is a general human truth: things that work interest us less than things that don’t....

[S]mall acts of social engineering, designed simply to stop crimes from happening, helped stop crime. In the nineties, the N.Y.P.D. began to control crime not by fighting minor crimes in safe places but by putting lots of cops in places where lots of crimes happened — “hot-spot policing.” The cops also began an aggressive, controversial program of “stop and frisk” — “designed to catch the sharks, not the dolphins,” as Jack Maple, one of its originators, described it — that involved what’s called pejoratively “profiling.” This was not so much racial, since in any given neighborhood all the suspects were likely to be of the same race or color, as social, involving the thousand small clues that policemen recognized already.   Minority communities, [Professor Frank] Zimring emphasizes, paid a disproportionate price in kids stopped and frisked, and detained, but they also earned a disproportionate gain in crime reduced.   “The poor pay more and get more” is Zimring’s way of putting it. He believes that a “light” program of stop-and-frisk could be less alienating and just as effective, and that by bringing down urban crime stop-and-frisk had the net effect of greatly reducing the number of poor minority kids in prison for long stretches.