November 25, 2006
How can the death penalty be sensibly improved?
Though I suspect death penalty opponents may chime in, the goal of this post is to encourage death penalty proponents to identify and discuss ways to improve the modern administration of the death penalty. Abolitionists surely believe energies and efforts should go toward eliminating, not improving, the death penalty; but abolition of capital punishment is not politically likely and is arguably undemocratic. Thus, at this unique moment in the modern American death penalty debate (details here and here and here and here), I am eager to engineer a conversation about possible improvements in the application of the death penalty.
Even the most avid proponent of the death penalty can surely identify numerous flaws in the modern administration of capital punishment. Whether concerned about wrongful convictions, ineffective defense counsel, inequities based in race, class and geography, or harmful appellate dynamics, few can adore the current realities of the death penalty in the United States. So, as we think about how best to deal with leftovers, perhaps we can also thinking about how best to deal with improvements to our modern system of capital punishment.
Major "Punishment" conference this coming week
As previously previewed here, The New School will soon hold its Social Research Conference entitled "Punishment: The U.S. Record." Taking place in New York City on Thursday, November 30 and Friday, December 1, the conference is designed to explore the "who, what, why and how we punish." The invited speakers and the topics to be discussed (detailed here and here) are truly amazing. A detailed agenda can be found at this link, and here is part of the conference's thematic statement:
We are convening this conference in order to examine punishment and criminal justice in the context of past histories and doctrines in order to better understand the ways in which punishment has become deeply implicated in the social life and social structures of American society. The conference is organized into 6 sessions that ask questions about the why, what, how and who of punishment, which will allow us to better understand the consequences of the current practice of punishment and search for viable alternatives to the carceral state in which we now live.
Less crime due to fewer prisoners?
Many debate whether the modern massive increase in incarceration rates account for the modern reductions in crime. Intriguingly, this piece from yesterday's Washington Post suggests a link between a decrease in incarceration and a decrease in crime. Here are portions of a terrific article:
It is one of the least-told stories in American crime-fighting. New York, the safest big city in the nation, achieved its now-legendary 70-percent drop in homicides even as it locked up fewer and fewer of its citizens during the past decade. The number of prisoners in the city has dropped from 21,449 in 1993 to 14,129 this past week. That runs counter to the national trend, in which prison admissions have jumped 72 percent during that time.
Nearly 2.2 million Americans now live behind bars, about eight times as many as in 1975 and the most per capita in the Western world. For three decades, Congress and dozens of legislatures have worked to write tougher anti-crime measures. Often the only controversy has centered on how to finance the construction of prison cells. New York City officials, by contrast, are debating whether to turn some old cells in downtown Brooklyn into luxury shops.
"If you want to drive down crime, the experience of New York shows that it's ridiculous to spend your first dollar building more prison cells," said Michael Jacobson, who served as New York's correction commissioner for former mayor Rudolph W. Giuliani (R) and now is president of the Vera Institute of Justice, which studies crime-fighting trends worldwide. "I can't tell you exactly why violent crime in New York declined by twice the national rate," he said. "But I can tell you this: It wasn't because we locked up more people."
Perhaps as intriguing is the experience in states where officials spent billions of dollars to build prisons. From 1992 to 2002, Idaho's prison population grew by 174 percent, the largest percentage increase in the nation. Yet violent crime in that state rose by 14 percent. In West Virginia, the prison population increased by 171 percent, and violent crime rose 10 percent. In Texas, the prison population jumped by 168 percent, and crime dropped by 11 percent.
November 24, 2006
Signs of the capital times
Stories about the death penalty do not take time off for holidays. For example, as well detailed by ODPI and Capital Defense Weekly, this week, there has been a new ruling on lethal injection from the Kentucky Supreme Court and new coverage concerning the execution of defendants who are mentally ill.
Jurist here has collected a lot of information about the Kentucky Supreme Court's unanimous decision Wednesday that the state's use of a three-drug lethal injection protocol does not violate the constitution because the prohibition on cruel and unusual punishment "does not require a complete absence of pain."
November 23, 2006
A turkey story for Thanksgiving
As this AP story details, President Bush kept up tradition yesterday by pardoning the National Thanksgiving Turkey. But today Debra Saunders, in this great commentary titled "Pardon more than the turkey," makes a strong case for doing a lot more:
After the GOP took that thumpin' in the November elections, President Bush wants the voters to give his party and his leadership a second chance. That makes this a good time for Bush to use his presidential pardon power to give others a second chance. This holiday season, Dubya should not limit his presidential pardon power to one lucky turkey.
Thanks to draconian federal drug sentences, the number of federal prisoners reached a record 193,989 on Nov. 9 -- that's a steep increase from 150,000 in 2003. The prison population is not growing because the feds are locking up drug kingpins.... The percentage of biggies behind bars is shrinking, while the low-life chump class grows. In 2000, the commission reported, the proportion of importers/high-level suppliers shrank to 1.4 percent of the cocaine offenders, down from 8.8 percent in 1995; the proportion of organizers/leaders fell from 12.7 percent in 1995 to 5.3 percent....
Clarence Aaron was a college student in 1992 when he introduced two dealers to each other. They paid him $1,500. Nine kilograms of cocaine were traded. A second deal didn't happen. Yet when the feds arrested the group, they charged Aaron with dealing 24 kilograms of crack cocaine, because one dealer was going to turn the cocaine into crack and the second deal had been set up. Aaron failed to cut a deal by pleading guilty and testifying against others. Aaron's sentence? Life without parole. That's right, Aaron wasn't in charge, he wasn't a professional dealer, he had been charged with a first-time nonviolent drug offense and he's serving the same sentence as the treasonous FBI-agent-turned-spy Robert Hanssen.
You might expect that sort of over-the-top sentence in the Middle Ages or some hellhole dictatorship that does not value human life. An enlightened nation, however, has no business locking up a kid and throwing away the key for life -- because he did something both criminal and stupid when he was, as Bush once described his early years, "young and irresponsible." I can't help but believe that if a white college kid had screwed up like this, unlike the African-American Aaron, he would have received a more fitting sentence.
Bush should commute Aaron's sentence this year, because it is the right thing to do. He also should work with the U.S. pardon attorney to release other prisoners serving sentences that far exceed their crimes. While in office, Bush has issued 97 pardons and two commutations. Two commutations are too few. Julie Stewart, the president of Families Against Mandatory Minimums, hears that the Bushies don't want to commute sentences that comply with guidelines, no matter how barbaric they are. "Why have a pardon attorney's office?" she asked rhetorically. "The Founding Fathers gave (the pardon) to the president for the very purpose of exercising it when the punishment doesn't fit the crime."
Politically, Bush could use pardons to show that he cares about people who live outside the GOP circle. Let Bush show America the president who boasted in his 2004 State of the Union speech that America is "the land of the second chance" that he walks the walk....
Around the blogosphere
If you are looking for some post-turkey sentencing reading to help you stay awake, there are lots of good new posts at:
- Capital Defense Weekly
- Corrections Sentencing
- Crime and Consequences
- Grits for Breakfast
- Ohio Death Penalty Information
November 22, 2006
So many sex offender stories
The interesting sex offender stories never seem to slow down. First, as covered well by Sex Crimes and How Appealing, New York's highest court has held that sex offenders could not be sent to mental institutions after release from prison under a New York rule. Second, the Washington Post has this front-page story, entitled "Some Curbs on Sex Offenders Called Ineffective, Inhumane," about sex offender residency restrictions. Here is how it starts:
As convicted sex offenders go, they seem to pose little danger. One is 100 years old. Another can barely walk and is in the late stages of Alzheimer's disease. Another is dying of heart disease in a nursing home. Yet, under a new Georgia law, thousands of registered sex offenders, even the old and feeble, could be pushed from their homes and hospices.
"He doesn't really know anything about it," said Ruby Anderson, 77, whose husband was convicted of having sex with a minor in 1997 and, at 81, no longer recognizes members of his family because of Alzheimer's disease. "The trouble is, I just don't know where we can go."
As states around the country have sought in recent years to control the whereabouts of convicted sex offenders, Georgia's law stands out as one of the toughest, a testament to the daunting public fears regarding children's safety. The roughly 10,000 sex offenders living in Georgia have been forbidden to live within 1,000 feet of a school, playground, church or school bus stop. Taken together, the prohibitions place nearly all the homes in some counties off-limits -- amounting, in a practical sense, to banishment.
"My intent personally is to make it so onerous on those that are convicted of these offenses . . . they will want to move to another state," Georgia House Majority Leader Jerry Keen (R), who sponsored the bill, told reporters. Since the law's enactment in July, however, a federal judge, human rights advocates and even some of the sheriff's departments that are supposed to enforce the measure have suggested that the zeal for safety may have gone too far. The residency law applies not only to sexual predators but to all people registered for sexual crimes, including men and women convicted of having underage consensual sex while in high school.
Advocates for the sex offenders say the law is unfair to people who have served their sentences and been deemed rehabilitated. Many police officers, prosecutors and children's advocates also question whether such measures are effective. Most predators are mobile, after all, and by upending their lives, the law may make them more likely to commit other offenses, critics say.
November 21, 2006
Another year for giving thanks
Thanks to a smart school board, my kids are off tomorrow. That means I am getting an early start on a long holiday weekend. Holiday blogging will likely be light over the next few days, though I may not be able to resist blogging about the traditional turkey pardon. (Any chance the turkey will be named Libby or Skilling?)
As we think about the holiday season, it is interesting to look back at posts from prior Thanksgivings:
"Is Crystal Meth the New Crack?"
The headline of this post is the title of this week's episode of the "Justice Talking" show, which features an extended debate on whether the methamphetamine problem is an "epidemic." The show also includes interviews with recovering addicts and drug treatment staff, aas well as discussions of the impact of methamphetamine on the Navajo Nation and the gay community. Here is the overview:
Crystal methamphetamine has been getting a lot of media and political attention in the last few years, with the Combat Meth Act signed by President Bush in March 2006 adding to the focus. This new federal law requires cold medicines containing pseudoephedrine be put behind the pharmacy counter because those medications can be turned into meth. States are using creative tools like building meth prisons while others are waging shock-and-awe prevention campaigns. But is meth a national epidemic or a regional problem? Join us on this edition of Justice Talking as we look at how the justice system is responding crystal meth.
Some related posts:
NPR (and more) on sex offender restrictions
Thanks to a favorite reader, I discovered that NPR's All Things Considered had this notable piece on the impact of sex offender residency restrictions. The piece covers lots of ground, and here is its set up:
Three sex offenders recently moved into a house in rural Hampden, Me., that is operated by a local charity. A local legislator wants to prevent sex offenders from living together, but the charity argues that giving them a supervised place to live actually helps keep the public safer.
Relatedly, the always interesting Sex Crimes blog has these recent posts of note:
The future is now with technocorrections
Even since starting their great blog, the insightful folks at Corrections Sentencing have been stressing that the future is bright for "technocorrections" (see posts here and here). In the wake of yesterday's article on alcohol detection devices for cars, I am ready to say the future is now for technocorrections. Here is some more evidence:
- My local paper, the Columbus Dispatch, today has this editorial urging that Ohio "require alcohol-detection devices on drunken drivers' cars."
- From Montana, the Billings Gazette has this fascinating article entitled "New technology helps with tracking offenders." Here are some details:
With the aid of electronic devices, supervisors at Alternatives Inc. in Billings are now able to monitor the travels of the people they supervise or receive hourly updates on whether drunk-driving offenders are using alcohol in defiance of bond requirements or sentencing guidelines....
In January, the nonprofit company became the first of three corrections-based companies in Billings to acquire Secure Continuous Remote Alcohol Monitors, or SCRAMs. The 8-oz. devices are secured to an ankle bracelet and test a person's sweat every hour on a 24-hour basis. They also test for alcohol emissions and take additional tests to check for tampering.
When alcohol is detected, the bracelet sends a radio signal to a modem in the subject's home, which in turn transmits to a Web-based program monitored by Alcohol Monitoring Systems Inc. of Denver. Case managers monitor the Web site to ensure participants are complying....
A second system - also new to Yellowstone County - was introduced in August. The BI ExacuTrack combines a Global Positioning System with a radio transmitter to enhance tracking capabilities. The transmitter is worn on an ankle bracelet throughout the day, as with traditional monitoring devices. Offenders clip the GPS unit to a waistband or purse while leaving home.
That allows for tracking an offender while he or she goes about pre-approved business. The device will determine if someone has gone near a location prohibited as part of sentencing or treatment - an alleged victim's house, a tavern or school grounds, for example. "We know they entered into an area they're not supposed to enter into, what time they entered and how long they were there," Clark said.
Some related posts:
Fast-track disparity after Booker
Late yesterday, the Tenth Circuit issued United States vs. Martinez-Trujillo, No. 05-4122 (10th Cir. Nov. 20, 2006) (available here), an interesting little opinion on fast-track disparity after Booker. In Martinez-Trujillo, the Tenth Circuit explains that "[w]e cannot say that a disparity is 'unwarranted' within the meaning of § 3553(a)(6) when the disparity was specifically authorized by Congress in the PROTECT Act."
The debate over fast-track disparity is one of many post-Booker "hot spots" that are not formally before the Supreme Court in Claiborne and Rita (lots of background here). But it is surely possible (perhaps probable?) that the decisions in Claiborne and Rita could impact how all "hot spot" post-Booker issues are resolved in the future.
The sentencing impact of age and gender
I often think that issues related to age and gender rarely get as much attention as they deserve at sentencing. But two leading state sentencing stories today bring these issues to the forefront:
- In California, as detailed here, an "89-year-old man whose car hurtled through a farmers market, killing 10 people, was let off on probation Monday by a judge who said he believed the defendant deserved to go prison but was too ill."
- In Texas, as detailed here, a "woman condemned for the slaying of a 3-month-old child she was baby-sitting in her home outside Austin in 1994 was given an execution date Monday."
November 20, 2006
What are the odds of a cert grant in Angelos?
After the cert grants in the Booker cases, my SCOTUS sentencing cup already runneth over. But, I see from SCOTUSblog here that the Angelos case is on their "petitions to watch" for the Justices' Conference on Tuesday. If SCOTUS takes the Angelos case, it could signal the Court's interest in tweaking its non-capital Eighth Amendment jurisprudence.
Regular readers will recall the story of Weldon Angelos, a first offender who was begrudgingly sentenced to 55 years' imprisonment by Judge Paul Cassell for marijuana sales under federal mandatory minimums. I'll be quite surprised if there is a grant in this case, but it would be great if the Eighth Amendment gets some more attention.
Some prior Angelos posts:
Extended account of USSC crack hearing
At this link, the folks at The Sentencing Project have a very helpful extended account of last week's US Sentencing Commission Public Hearing on "Cocaine and Federal Sentencing Policy — 2006" (background here and here). On a related front, Legal Times has a long and thoughtful piece here (subscription required) on crack sentencing as the DC Circuit gears up for an argument on the ratio issue.
Some recent related posts:
- An early report from the USSC crack hearing
- The Justice Department's crack testimony
- Commentary on crack sentencing as USSC hearing approaches
- Pondering the USSC's upcoming crack/powder hearing
- Key questions for USSC: Now what...?
A Sixth Circuit pair on Booker and 3553
The Sixth Circuit in two rulings this morning provides an account of various post-Booker issues: US v. Gale, No. 05-4204 (6th Cir. Nov. 20, 2006) (available here), discussed various 3553(a) factors at length; US v. Magouirk, No. 05-5960 (6th Cir. Nov. 20, 2006) (available here), discusses a plea in which the parties apparently agreed to be bound by the guidelines even after Booker. Both ruling look quite interesting (though both are the typical government victories), and I hope to comment further once I get a chance to review both opinions.
Technology versus toughness to combat drunk driving
This article today in the New York Times spotlights that, at least in the arena of drunk driving, the modern move is to technology (rather than tougher sentences) to combat a severe crime problem. Here are the basic details:
The threat of arrest and punishment, for decades the primary tactic against drunken drivers, is no longer working in the struggle to reduce the death toll, officials say, and they are proposing turning to technology — alcohol detection devices in every vehicle — to address the problem. In the first phase of the plan, Mothers Against Drunk Driving, backed by a national association of state highway officials and car manufacturers, will announce here on Monday a campaign to change drunken driving laws in 49 states to require that even first offenders install a device that tests drivers and shuts down the car if it detects alcohol.
Though I laud the effort to turn to technology to combat crime, it is once again telling that the scourge of drunk driving prompts innovate crime-fighting techniques rather than calls for harsher sentences. (Consider the contrast to the way we are dealing with on-line crimes, as discussed here.)
Some related posts on drunk driving sentencing:
- Is capital punishment for drunk driving morally required?
- Why do we worry so much more about sex offenders than drunk drivers?
- Undue leniency for drunk drivers?
- More discussion of leniency for drunk drivers
- Getting tougher on drunk driving
Might California finally create a sentencing commission?
This Sacramento Bee article encouragingly suggests that it may be only a matter of time before California finally joins the ranks of states with a sentencing commission. Here are some highlights from the story:
Facing a double whammy of a population cap and a court decision that threatens to wipe out the state's sentencing law, the Department of Corrections and Rehabilitation is considering a sentencing commission that would help decide who goes to prison and for how long. "We are willing to engage in sentencing reform," Corrections Secretary James Tilton said in an interview with The Bee, adding that as part of the discussion, the Schwarzenegger administration is looking at establishing a sentencing commission.
Such panels take different forms but can allow states to manage prison populations by altering the approach to sentencing. The idea was rejected seven times in California between 1984 and 1998 -- three times by gubernatorial vetoes and four times by legislative committees. But a new urgency has slammed down on the state's prison system. Legal motions filed last week in three pending federal cases already decided in favor of the defendants are demanding that the prison system cap its population. Meanwhile, the U.S. Supreme Court is deliberating on a case that very well could render to the trash heap the way judges have been sentencing convicted defendants in California for nearly 30 years....
Twenty-two states already have sentencing commissions, as does the federal government and the District of Columbia... In California, sentencing commissions met disfavor from Republican Govs. George Deukmejian and Pete Wilson, each of whom vetoed bills (Wilson twice) that would have established such panels. Deukmejian, in a 1984 veto message, said they threatened to undermine the determinate sentencing law and took away from the Legislature's accountability. Wilson, in a 1994 veto, suspected that a sentencing commission would favor the "discredited" indeterminate system where judges had a wide range of options and that it would reinstate a "lenient" parole board that would let too many prisoners out too early.
Gov. Arnold Schwarzenegger said in Los Angeles last week that "everything should be on the table" when it comes to fixing the prisons. He added, "I am open-minded about this, and that's how we're going to solve that problem." State Sen. Gloria Romero, D-Los Angeles, slated to become the Senate's public safety chairwoman when the Legislature reconvenes, discussed prisons with the Republican governor in Mexico during his trade mission earlier this month. She said a sentencing commission is "near the top of my list" as a prison problem-solver. "The concept is sound," Romero said. "It's something I'm working to craft legislation around."
Debating sentences for predator offenses
The Roanoke Times has this extended article on sex offense sentencing, which has this set up: "Authorities are trying to toughen the penalties for crimes involving sexual exploitation of children. But some in the legal community wonder whether stricter punishments will solve the problem." Here's more from the start of the story:
John Beckner purchased five years in a federal penitentiary with a $10 money order.
Beckner had visited an Internet site featuring child pornography. Over the next six months, the Roanoke man received e-mails hawking the site's wares. Though he made efforts to avoid the Internet, reminders from HotPop.com kept arriving. Finally, Beckner ordered a $10 "preview" video. But HotPop.com was a front for a federal sting. As soon as Beckner picked up the tape, black government sport utility vehicles were following him.
Beckner cooperated with investigators and had no criminal record. Yet a federal judge in Roanoke had no choice but to sentence him to five years in prison, the mandatory minimum. Paul Dull, Beckner's attorney, noted that his client never laid a finger on a child, and his only illegal purchase was from the federal sting. "So how, exactly, is he contributing to this mass problem?" Dull asked.
Beckner's case could become typical as national and state authorities campaign to toughen the penalties for crimes involving sexual exploitation of children, with a definite emphasis on punishment over treatment.
Virginia Attorney General Bob McDonnell wants to look into creating state mandatory sentencing minimums for child pornography possession, akin to the federal law that sent Beckner to prison. "It all has to do with the word 'potential,' " said Roanoke defense attorney Gary Lumsden. These cases become a balancing act between protecting society from potential molesters "and on the other end of the spectrum, a witch hunt," he said.
Weekend highlights from the blogosphere
There are lots of interesting sentencing items to be found from weekend work around the blogosphere:
- Crime & Consequences discusses here a "retroactivity decision by the Nevada Supreme Court on Thursday could affect about half of the 83 murderers on Nevada's death row."
- Grits for Breakfast notes here that "a Republican state district judge in Houston this week called for Governor Perry and the Texas Legislature to reduce drug sentences."
- SCOTUSblog has here its list of petitions to watch for the Justices' Conference this week, and a number of the listed cases involve criminal justice issues.
- Corrections Sentencing discusses here the "real linkages between crime and incarceration."
- StandDown Texas Project discusses here a " major story in the coming issue of Texas Lawyer exploring a 65% decrease in death sentences in the state in the past decade."