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November 10, 2007

Does reefer no longer inspire madness?

Time magazine has this interesting new article entitled "Mellowing Out on Marijuana."  Here is how it starts:

Those Rocky Mountains are getting higher. Two municipalities — Denver, Colorado, and the small town of Hailey, Idaho — passed pro-marijuana measures on election day this week, joining a growing number of liberal localities that are reducing or removing penalities on using pot. It's part of a slowly evolving populist rehabilitation of the drug. San Francisco, Oakland and Santa Monica in California, along with Missoula, Montana, and Seattle, Washington, have previously passed laws that give the lowest priority to enforcing existing marijuana laws.

Federal regulations, which supercede local ordinances, continue to prescribe heavy penalties — even in some cases death — for major dealers of illegal drugs, including marijuana.  The federal penalty for possession of even a miniscule amount is a misdemeanor punishable by one year in prison and $1,000. Penalties are higher with cultivation, sale and crossing state lines.  However, magistrates generally use state and local laws as sentencing guidelines — unless there is federal intervention, which doesn't occur in every drug case because they would increase court time and costs.

November 10, 2007 in Drug Offense Sentencing | Permalink | Comments (5) | TrackBack

Federal judge adds banishment as sentencing provision

According to this piece in the Boston Globe, a federal district judge included banishment in the set of sentencing terms imposed upon a set of drug dealers:

A federal judge sent a message to three reputed gang-bangers who pleaded guilty yesterday to dealing cocaine: Get out and stay out. 

In an unprecedented ruling, U.S. District Court Judge William Young told the three men who allegedly terrorized the Bromley-Heath projects in Jamaica Plain that after serving their prison sentences they would be banned from moving back to Boston for an additional 12 years, U.S. Attorney Michael Sullivan said yesterday. “We have never seen this happen before,” Sullivan said. “The judge was persuaded to separate them from the people they influence.”...

Young’s ruling to keep the three thugs out of Suffolk County for a dozen years after they are released from prison is meant to prevent them from returning here as crowned gang heroes....

Some related posts on other banishment sentences:

November 10, 2007 in Criminal Sentences Alternatives | Permalink | Comments (0) | TrackBack

Vermont Supreme Court limits retroactivity of its Blakely ruling

As detailed in this AP story, the Vermont Supreme Court "ruled yesterday that a 2005 decision that found Vermont's laws on sentencing murderers unconstitutional did not apply to a long list of killers sentenced before it was issued."  This ruling came in State v. White, 2007 VT 113 (Nov. 9, 2007) (available here), and White is an especially interesting read now that the US Supreme Court is considering state retroactivity authority in the Danforth case (discussed here and here and here).

November 10, 2007 in Blakely in the States, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

November 9, 2007

Great JPI briefs on public safety research

I just noticed at this website that the Justice Policy Institute has now released three effective briefs in its "Series on Public Safety."  Here are the basics (with links) on the briefs in the series:

Housing and Public Safety shows that increased availability of housing is associated with positive public safety outcomes.  The first in the series, Education and Public Safety, was released in August.  The second in the series, Employment, Wages and Public Safety was released in October.

November 9, 2007 in Criminal Sentences Alternatives | Permalink | Comments (0) | TrackBack

Some long weekend reading thanks to SSRN

Federal courts are closed on Monday, which give folks a extra day to check out some of these new pieces recently posted on SSRN:

November 9, 2007 in Recommended reading | Permalink | Comments (0) | TrackBack

Wondering about any amicus briefs in Baze

As noted in this post, the defendants in Baze filed earlier this week their brief on the merits asserting that "Kentucky's three-drug lethal injection protocol violates [a] bedrock Eighth Amendment requirement."  I believe amici generally have to file SCOTUS briefs at the same time as the side they support, and thus I had expected we would see some Baze amicus briefs from anti-death penalty groups making the rounds this week.  But, as of this writing, I have not seen or heard about any amici briefs filed in Baze.  Do any readers know of any additional Baze filings?

UPDATE:  A helpful reader reminded me that I was not up on the latest new SCOTUS rules.  Here is the friendly e-mail that showed me the light:

The Court's rule governing amicus briefs, Rule 37, was amended earlier this year (and effective Oct. 1) to change the due date for amicus briefs to seven days after the filing of the merits brief for the party the amicus is supporting.  So, the due date is next Tuesday, Nov. 13 (because Monday is a holiday).

In other words, next week is when we will hear from friends with views on the death penalty.

November 9, 2007 in Baze lethal injection case | Permalink | Comments (0) | TrackBack

Is NJ on the verge of repealing its (dormant) death penalty?

The news from New Jersey is that the state may be on the verge of legislatively repealing its (never used) death penalty:

The Assembly will vote next month on legislation to repeal New Jersey's never-used death penalty, Speaker Joseph Roberts (D-Camden) said today, adding he is "cautiously optimistic" the bill will pass.

At a Statehouse news conference with Sister Helen Prejean, whose ministry to death row inmates was described in her book "Dead Man Walking," Roberts said he is committed to making New Jersey "the first state to legislatively repeal the death penalty." With support for capital punishment waning nationally, such a move would make New Jersey "a beacon on the hill" that other states will follow, Prejean predicted. "I know you're known as the Garden State; it's going to be great to also be known as the life state," said Prejean, who has made a dozen trips to New Jersey to urge repeal of the death penalty.

Roberts said the Assembly will take up a bill (A-3716) by Assemblyman Wilfredo Caraballo (D-Essex) that would replace capital punishment with life imprisonment without the possibility of parole. "The bottom line of that bill is to lock murderers in jail and throw away the key," Roberts said. "The cost of having a death penalty that never gets used can no longer be tolerated."

Though I am sure abolitionist will welcome this news, anyone concerned about over-punishment should be hesitant about praising these developments.  I believe the New Jersey abolition bill may, as discussed here, expand the number of persons subject to mandatory life without parole.  Especially given the reality that no defendant has been executed in New Jersey in modern times, I believe the abolition movement in New Jersey, if successful, could actually be ushering in a harsher set of punishments in the Garden State.

Some related posts on New Jersey's capital punishment debate:

November 9, 2007 in Death Penalty Reforms | Permalink | Comments (10) | TrackBack

What will AG Mukasey do about federal sentencing policy?

As detailed in this New York Times article, the "Senate confirmed Michael B. Mukasey as attorney general Thursday night, approving him despite Democratic criticism that he had failed to take an unequivocal stance against the torture of terrorism detainees."  As the article further explains, the "53-to-40 vote made Mr. Mukasey, a former federal judge, the third person to head the Justice Department during the tenure of President Bush, placing him in charge of an agency that members of both parties say suffered under the leadership of Alberto R. Gonzales."

As noted here, there was very little sentencing talk at Mukasey's confirmation hearings.  But, Mukasey now takes over the Justice Department at a time when possible Booker fixes, crack sentences, mandatory minimums, federal death penalty policy, lethal injection litigation, extreme sentences for white-collar and non-violent offenses and national sex offender policies all are ripe topics for DOJ leadership.  It will be very interesting to see if he does anything consequential in these areas over the next year.

Some related posts (asking lots of questions):

November 9, 2007 in Who Sentences? | Permalink | Comments (1) | TrackBack

November 8, 2007

Rep. Rangel assails selective compassion

Writing at the Huffington Post, Representative Charles Rangel from New York has this potent new commentary noting the willingness of prominent Republicans to forgive friends but not others for legal wrong-doings.  Here are highlights from an effective piece:

Fred Thompson seems to think forgiveness is one of his strong suits. The Republican presidential aspirant recently brushed off news that one of his campaign co-chairmen, Phil Martin, posted a guilty plea in 1979 for selling 11 pounds of marijuana and a no-contest plea in 1983 for cocaine trafficking and conspiracy.... Not to be outdone, Rudy Giuliani, the former New York City mayor running for the Republican presidential nomination, has excused the illegal dealings of Bernard Kerik, Giuliani's former police commissioner whose nomination to become secretary of the Department of Homeland Security he supported....

Even before them, President George Bush commuted the 30-month prison sentence of Lewis "Scooter" Libby who had been convicted of perjury, obstruction of justice and lying to investigators in the probe of the leak of the name of a CIA operative. In another case of compassion and forgiveness of the powerful, the President claimed that Libby's sentence was "excessive," and that the suffering of the former aid to Vice President Cheney "long-lasting."

Thompson, Giuliani, and Bush have proven that they're willing to forgive millionaires and the powerful for big mistakes.  Libby is one of the few exception to Bush's stinginess with forgiveness of prisons -- on pace to issue the fewest pardons since George Washington. If either Thompson or Giuliani become president, I just hope they'll extend the same compassion to wayward kids in my community who have run-ins with the law that they've shown to their friends....

The criminal justice system certainly hasn't been forgiving over the past 20 years.  In response to the onslaught of cocaine abuse in the 1980s, the nation crafted a drug policy totally lacking in compassion, and worse, that was totally unfair to the weakest, and most disadvantaged, in society....

The inequality is feeding the population of 2.2 million prisoners, the world's largest.  Blacks, who are most likely to be caught up in drug sweeps, comprise only 15 percent of users but account for over 40 percent of the 500,000 imprisoned drug offenders....

President Bush and presidential wannabes Thompson and Giuliani seem to find it so easy to find compassion when one of their own breaks the law.  But they are silent when the poor and powerless are warehoused in our jails because of an unjust criminal justice system.

November 8, 2007 in Who Sentences? | Permalink | Comments (7) | TrackBack

More of the crack facts and retroactivity arguments

The latest issue of Time has this article on the new crack guidelines, which includes this effective analysis of what's happening:

Drug dealers are bad guys, but even they should be treated fairly.  That's why advocates of sentencing reform are cheering a recent federal move to narrow the jaw-dropping disparity in sentences for trafficking in two versions of the same drug, cocaine. But it's way too early for them to be declaring victory... [W]hile the new guidelines have reduced the penalties above the mandatory minimums, those minimums are still firmly in place....

What's more, even the changes in the guidelines will have only a limited effect unless the sentencing commission makes them retroactive — an issue it is expected to discuss at a Nov. 13 meeting.  As of now, the new guidelines will affect only new offenders.  If the commission decides to go retro, the move could shorten the prison terms for some 19,500 inmates by an average of 27 months.

On the "retro" front, the Sentencing Commission has now made available here some of the comments it has received from "the judiciary, the executive branch, interested organizations, members of the defense bar, and individual citizens."   I especially liked Judge Richard Kopf's to-the-point pitch for retroactivity:

I urge the Commission to make the "crack" amendments to the Guidelines retroactive.  Even though that will mean more work for judges, every conception of justice of which I am aware justifies such an action.

On its main webpage, the USSC also notes that it "received more than 33,000 letters from individuals expressing their views on retroactivity."  Next week's USSC hearing on these issues ought to be a doozy.

Some recent related posts:

November 8, 2007 in New USSC crack guidelines and report | Permalink | Comments (0) | TrackBack

Another report tentatively praising faith-based prisons

Thanks to this post at Corrections Sentencing, I discovered this relatively new report from the Urban Institute entitled "Evaluation of Florida's Faith- and Character-Based Institutions."  The report provides a detailed account of Florida' "FCBIs" along with some cautious praise.  Here are some snippets from the executive summary:

In addition to traditional solutions such as education and vocational training, corrections officials are increasingly implementing faith-based models, as well as secular programs that emphasize moral development and character building. Florida is one of many states to follow this trend, but set itself apart from other corrections agencies when, on Christmas Eve 2003, it opened the first state-operated correctional institution dedicated exclusively to a faith- and character-based approach to rehabilitation.

The findings and recommendations outlined below — and explored in detail throughout this report — highlight the results of a process and impact evaluation conducted by the Urban Institute of two of Florida’s Faith- and Character-Based Correctional Institutions (FCBIs)...

Staff, inmates, and volunteers overwhelmingly find value in the FCBI model and believe that it is achieving its goals of changing inmate behaviors, preparing inmates for successful reentry, and ultimately reducing recidivism. Respondents feel that, in particular, the FCBI experience helps promote family reunification and employment prospects upon release, while also improving the prison environment for inmates, volunteers, and staff. That these successes are achieved in large part through volunteer resources from the private and non-profit sectors is cited as both a cost savings to FDOC and an asset to the model, as some respondents indicate that volunteers can provide more effective, dynamic services than those the state is able to offer....

FDOC should be cautiously optimistic about the impact of FCBIs on reoffending behaviors, particularly given the potential cost savings associated with the volunteer-led program offerings. Indeed, it is possible that inmates across FDOC facilities could benefit from volunteer-run self-betterment programs that are virtually budget neutral.  However, corrections officials may also wish to replicate the impact analysis reported in this document in a year’s time, when the sample sizes are more likely to yield results in which they can have increased confidence.

Some related posts on faith-based prison programs:

November 8, 2007 in Scope of Imprisonment | Permalink | Comments (0) | TrackBack

USSC holding a public briefing on incarceration alternatives

I am intrigued to see a notice on the US Sentencing Commission's website indicating that the Commission has scheduled a "public briefing session" for next Wednesday morning.  According to this agenda, the focus of the public briefing is "Alternatives to Incarceration" and will include presentations by Commission Staff and by Margaret Colgate Love, Director, American Bar Association, Commission on Effective Criminal Sanctions.

November 8, 2007 in Criminal Sentences Alternatives | Permalink | Comments (1) | TrackBack

Florida Supreme Court denies execution stay

Providing the Supreme Court with yet another opportunity to stay (or not stay) an execution while the Baze case is pending, the Florida Supreme Court yesterday denied a stay a defendant scheduled to be executed next week.  Here are details from this coverage in the Orlando Sentinel:

The Florida Supreme Court on Wednesday rejected another request to postpone the execution of Mark Dean Schwab, the child killer scheduled to die Nov. 15.  Justice Barbara J. Pariente wrote in an opinion issued in Tallahassee that it should be up to the U.S. Supreme Court to issue Schwab a stay if it intends to impose "a de facto moratorium on the death penalty."...

Although Pariente noted in the opinion that courts can't tell legislators what to do, she recommended they explore using other drugs that may carry "less risk of pain" for the condemned than the pancuronium bromide and potassium chloride now used.  Pancuronium bromide is used to stop an inmate's breathing, while potassium chloride stops the heart.

Two justices -- Harry Lee Anstead and Peggy Quince -- dissented from the majority of the court.  Anstead wrote that a stay "will result in no detriment to the state" because Florida would be free to execute inmates after the U.S. Supreme Court renders its decision in the Kentucky case.

Yesterday's Florida Supreme Court ruling can be accessed at this link.

November 8, 2007 in Baze lethal injection case | Permalink | Comments (2) | TrackBack

Paroling the elderly

This morning's New York Times has this interesting article about New York's decision to parole the state's oldest inmate.  Here is how it starts:

A panel of the State Parole Board voted 2 to 1 yesterday to release Charles E. Friedgood, a wealthy Long Island surgeon who was convicted in 1976 of murdering his ailing wife and who is now, at 89, the oldest state prison inmate in New York. He is expected to be freed in mid-December and admitted to a veterans’ hospital.

Reversing a ruling announced on Oct. 10 by a panel of three other parole commissioners, the majority concluded yesterday, “There is reasonable probability that, if released, this inmate will live and remain at liberty without violating the law.”

November 8, 2007 in Sentences Reconsidered | Permalink | Comments (3) | TrackBack

November 7, 2007

Mass SJC gives force to due process and fundamental fairness at sentencing

As noted by How Appealing and explained in this Boston Globe article, yesterday the Supreme Judicial Court of Massachusetts concluded in State v. Ly that the "execution of the defendant's sentences, after an unexplained delay of sixteen years on the part of the Commonwealth to have the sentences executed, would violate due process and principles of fundamental fairness."  Here are passages from the ruling (with some cites omitted):

It is a basic principle that a defendant sentenced to incarceration has a due process right to serve the sentence promptly and continuously, rather than "in installments." White v. Pearlman, 42 F.2d 788, 789 (10th Cir. 1930) (premature release).  Otherwise, "[a] prisoner sentenced for one year might thus be required to wait forty under the shadow of his unserved sentence before it pleases the marshal to incarcerate him."  Smith v. Swope, 91 F.2d 260, 262 (9th Cir. 1937) (unexecuted sentence).  Consistent with these cases is the proposition that the execution of a defendant's sentence, including one which has been stayed pending the resolution of an appeal, as a matter of fundamental fairness, must be pursued with reasonable diligence.  We conclude that requiring the defendant to serve his sentences, at this point in time and on these facts, would violate the concept of fundamental fairness that is at the core of due process.  See State v. Roberts, 568 So. 2d 1017, 1019 (La. 1990) (due process and fundamental fairness required release of prisoner [on parole] when government failed to execute sentence for six years).  Other courts considering circumstances like this have reached the same result based on different theories....

This court addressed at length, in Aime v. Commonwealth, 414 Mass. 667, 673-675 (1993), key differences between the constitutional protections against improper governmental action known as "substantive due process" and "procedural due process."  We have decided this case under a traditional procedural due process analysis, similar to that used in determining whether a defendant has been denied the constitutional right to a speedy trial.  We need not decide, therefore, whether incarcerating the defendant (at this point in time and on these facts) would "shock the conscience," thereby violating his right to substantive due process as well.

November 7, 2007 in Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Seventh Circuit finds "fairly pernicious scrivener’s error" in presumptively reasonable guidelines

Even a circuit generally eager to praise the reasonableness of the sentencing guidelines cannot always avoid acknowledging their flaws.  Today, for example, the Seventh Circuit vacates a within-guideline sentence in US v. England, No. 06-2381 (7th Cir. Nov. 7, 2007) (available here), although the panel does not declare the imposed sentence unreasonable.  Rather, the sentence is vacated because the district court did not assess possible sentencing disparities resulting from following the guidelines in an quirky case in which "it appears that the Sentencing Guidelines might have a fairly pernicious scrivener’s error."

November 7, 2007 in Federal Sentencing Guidelines | Permalink | Comments (3) | TrackBack

Eighth Circuit shows yet again that within-guideline sentences are essentially per se reasonable

I was hopeful — though not especially optimistic — that circuit courts would review within-guideline sentences with a bit more rigor after Rita.  But today's Eighth Circuit ruling in US v. Otterson, No. 06-3555 (8th Cir. Nov. 7, 2007) (available here), reveals yet again that some circuits view any within-guideline sentence as essentially per se reasonable.

In Otterson, the defendant was sentenced to just under 20 years' imprisonment after pleading guilty to sending child porn to an undercover officer posing as a thirteen-year-old girl.  At sentencing,

Otterson emphasized the fact that he came from a troubled home, he was the victim of sexual abuse, his father sexually abused his sisters, and his mother was committed for mental health issues while Otterson was still a minor.  He discussed his own well-documented history of physical and mental disabilities, including the fact that he suffered from Bell’s palsy which, together with other conditions, Otterson claimed made social contact difficult and ensured he lived essentially as a hermit.  Finally, he admitted that he had been using drugs at the time of the offense.

Otterson argued primarily that his social history and physical and mental infirmities provided justification for a lower sentence.  He also argued that because he did not actually produce child pornography or physically touch any children related to the present offense, his sentence should not be at the top of the Guidelines range.  Finally, he argued that his criminal history was overstated given his characterization of his prior property offenses as minor and his light sentence on the Missouri sex crime charge.

In response, "the district court imposed the sentence of 235 months [the top of the 188-235 guideline range] to be followed by supervised relief [sic] for life." To justify this outcome,

the district court specifically stated its view as to the severity of the offense, referenced the sadistic and masochistic nature of the materials, and referenced Otterson’s online discussions with the undercover officer who posed as a thirteen-year-old girl.  The district court stated the sentence was appropriate “to address the sentencing objectives of just punishment, general deterrence, and incapacitation.”  The district court did not expressly address other factors under 18 U.S.C. § 3553(a) or discuss the issues Otterson raised as mitigating factors.

On this record, the Eighth Circuit panel rejects the defendant's reasonableness challenge.  It asserts simply that all the mitigating issues raised by Otterson "were clearly presented to the court in the PSR and at the sentencing hearing and are accounted for in the undisputed Guidelines range." 

As an initial matter, I do not quite understand the basis for the panel's assertion that Otterson's mental and physical condition and his social history "are accounted for" in the Guideline range.  The guidelines do not provide any mitigating adjustments for any of these factors.  Though a judge might reach a reasoned conclusion not to reduce a sentence based on these factors under § 3553(a), Rita stresses that, even when giving a guideline sentence, a judge should "explain why he has rejected those arguments" put forward by defendants for a different sentence.  The district court's silence in this case does not seem to me to be an adequate explanation in light of Rita.

Moreover, and perhaps even more disturbing, neither the district court or the Eighth Circuit panel explained why they view as "sufficient but not greater than necessary" for Otterson a prison sentence of 235 months (at the top of the applicable guideline range), instead of a sentence of, say, 188 months (at the bottom of the range).  Despite making numerous non-frivolous mitigating argument, Otterson was given four more years in prison than the (presumptively reasonable) guideline range demands, and it is hard for him or anyone else to understand exactly why.

November 7, 2007 in Booker in the Circuits, Rita reactions | Permalink | Comments (10) | TrackBack

Denver voters approve initiative busting up pot busts

The Denver Post reports here on the results of an interesting criminal justice initiative that appears to have been passed by city voters:

More than half of Denver voters favored an initiative making marijuana the city's lowest law enforcement priority.  With just a handful of ballots left to count, the measure had captured 55 percent of the vote.  The result means the mayor must appoint a panel to monitor how marijuana cases are handled by the police and city prosecutors and issue a report.

"It appears as if it is going to pass, and it shows there is a wealth of support around the city," said Mason Tvert, campaign director of Safer Alternative For Enjoyable Recreation, the group behind the initiative.  Tvert says the measure was motivated by what he says are overzealous police who continue to cite adults for possessing under an ounce of marijuana despite a law that allows simple pot possession in Denver.

Denver police and prosecutors say possessing marijuana still violates state and federal laws. A spokeswoman for Denver Mayor John Hickenlooper has said that enforcement of laws governing small amounts of marijuana is already a low priority.

Similar initiatives passed in Seattle in 2003 and in Missoula, Mont. last year.  Seattle's marijuana panel reported that marijuana prosecutions and arrests are down, but Seattle's city attorney says the group cannot agree whether the initiative caused the drop.  In Missoula, the city attorney has told prosecutors in his office not to pursue simple marijuana possession cases involving adults.

I love that the acronym for this campaign was SAFER, but wouldn't Really Excited Enthusiasts For Enjoyable Recreation have been a more appropriate name for the group?  Also, would we have expected any other result from the Mile High City? 

More seriously, I am intrigued by various efforts to wage populist counter-attacks on the war on drugs through the initiative process.  I wonder if anyone is working on these ideas for the big 2008 election cycle.

November 7, 2007 in Offense Characteristics | Permalink | Comments (1) | TrackBack

USSC sets agenda for crack amendment retroactivity hearing

Over at its website, the US Sentencing Commission has posted this planned agenda for the public hearing scheduled for November 13 at Georgetown University Law Center concerning whether its amendments reducing the crack guidelines should be applied retroactively to previously sentenced defendants.  The agenda suggests that this USSChearing should be a quite an event, with 18 speakers scheduled to speak (most of whom, I believe, will be advocating retroactivity).

Some recent related posts:

November 7, 2007 in New USSC crack guidelines and report | Permalink | Comments (1) | TrackBack

NY Times editorial pushing Second Chance Act

This morning's New York Times has this editorial entitled "A Second Chance for Ex-Offenders." Here are excerpts:

If past patterns hold true, more than half of the 650,000 prisoners released this year will be back behind bars by 2010. With the prison population exploding and the price of incarceration now topping $60 billion a year, states are rightly focusing on ways to reduce recidivism. Congress can give these efforts a boost by passing the Second Chance Act, which would provide crucial help to people who have paid their debts to society....

The Second Chance Act would add to what the country knows about the re-entry process by establishing a federal re-entry task force, along with a national resource center to collect and disseminate information about proven programs....  The programs necessary to help former prisoners find a place in society do not exist in most communities.  The Second Chance Act would help to create those programs by providing money, training, technical assistance — and a Congressional stamp of approval.

It is sad but telling that the Second Chance Act has not yet become a reality even though it has had bipartisan support since President Bush in his 2004 State of the Union address spoke passionately about the importance of showing compassion (and providing job training and placement services) to convicted offenders because "America is the land of second chance."   

Some related posts discussing the Second Chance Act:

November 7, 2007 in Reentry and community supervision | Permalink | Comments (5) | TrackBack