December 1, 2007
A profile of Judge Gertner's sentencing courage
Boston Globe columnist Derrick Jackson has this new column entitled "A judge asks the tough questions" discussing Judge Nancy Gertner's decision to give a sentencing break to a defendant who pled guilty to selling small amounts of crack cocaine (basics here). Here is how it starts:
US District Judge Nancy Gertner joked that she worried about a headline that could have read, "Limousine liberal lets crack dealer off." This was for setting free 37-year-old Myles Haynes last week after 13 months in jail for selling a small amount of crack cocaine in a Boston housing project.
Under federal sentencing guidelines, Gertner could have continued his sentence for another two or so years. She decided that, with Haynes having children, not being a chronic offender, and having a reasonable enough track record of trying to serve in the military and find gainful employment, it was more important to give him a chance to be a contributing member of his family and society. Gertner told Haynes from the bench, "When I see your son, I think that public safety requires that you be with your son so that he doesn't follow in your footsteps."
Public sanity requires following in Gertner's footsteps.
Lots of speculation concerning Judge Hudson's playbook for Vick
Yesterday's sentencing of Michael Vick's codefendants (basics here) has, unsuprisingly, lots of folks speculating about what sentence Judge Henry Hudson has in mind for Vick. Here are links to two particularly effective pieces:
- From the New York Times here, "Message Sent in Sentencing of Two Vick Co-Defendants"
- From Sports Illustrated here, "As the dominoes fall: Assessing Vick's fate after co-defendants' sentencing"
November 30, 2007
Sixth Circuit going en banc on acquitted conduct enhancements!
I am pleased to be able to end a busy week and month by reporting the exciting news that the Sixth Circuit today has ordered en banc review in White, a case involving the status of acquitted conduct guideline enhancements in the wake of Booker. Here is today's pacer entry:
11/30/2007 ORDER filed granting petition for en banc rehearing [3670756-2] filed by Mr. Kevin M. Schad for Roger Clayton White to reinstate the appeal. The previous decision and judgment of this court is vacated, the mandate is stayed. Danny J. Boggs, Chief Circuit Judge; Boyce F. Martin , Jr., Alice M. Batchelder, Martha Craig Daughtrey, Karen Nelson Moore, R. Guy Cole , Jr., Eric L. Clay, Ronald Lee Gilman, Julia Smith Gibbons, John M. Rogers, Jeffrey S. Sutton, Deborah L. Cook, David W. McKeague, Richard Allen Griffin, Circuit Judges.
11/30/2007 BRIEFING LETTER SENT resetting briefing schedule: supplemental appellant brief + 25 copies of initial brief due 01/07/2008; supplemental appellee brief + 25 copies of initial brief due 02/11/2008; 25 copies of initial joint appendix due 01/07/2008. The supplemental briefs should not exceed 25 pages.
I assume that the Sixth Circuit is likely also to schedule a oral argument before the full court; the timeline set for the supplemental briefs suggests that oral argument could take place in late winter with a decision from the full Sixth Circuit perhaps as early as spring.
Not only is this exciting news for those eager to see a thoughtful circuit wrestle with an important and intricate post-Booker topic, it also likely will mean that the issue of acquitted conduct will garner additional attention from various important folks in the months ahead. For instance, I'd expect someone from the SG's office to argue White before the full Sixth Circuit. Also, I think just the grant of en banc review could increase the likelihood of the Supreme Court taking up this issue before too long. And, if the full Sixth Circuit breaks from other circuits to find post-Booker constitutional problems with acquitted conduct enhancements, an SG appeal and a cert grant seem almost certain.
Some related posts on White and acquitted conduct:
- Rooting for the Sixth Circuit to take acquitted conduct en banc in White
- Opposition to considering acquitted conduct en banc in White
- Will the Sixth Circuit consider acquitted conduct enhancements en banc?
- Strong commentary on acquitted conduct sentencing
- A terrific district court opinion on acquitted conduct
- New (or renewed) ideas and arguments suggested by Rita
- Sincere questions about acquitted conduct sentencing
Commentary on the end of innocence in the federal system
With apologies to Don Henley, the commentary referenced here comes from PENNumbra as part of its featured November responses to Ronald Wright's great article, Trial Distortion and the End of Innocence in Federal Criminal Justice, 154 U. Pa. L. Rev. 79 (2005). And here is the impressive set of responders with links to their pieces:
- American Buffalo: Vanishing Acquittals and the Gradual Extinction of the Federal Criminal Trial Lawyer by Frank O. Bowman, III
- What's Good About Trials? by Michael M. O'Hear
- Judging Untried Cases by Daniel Richman
Bad news for Vick in the other Bad Newz sentencings
The Atlanta Journal-Constitution has this early report on the federal sentences given today to Michael Vick's codefendants. The headline reads, "Vick cohorts' terms longer than recommended: Sentences could be an indication of what's in store for QB," and here are excerpts:
Two of Michael Vick's co-defendants received tough sentences Friday as the federal judge overseeing the dogfighting case handed down prison terms longer than those recommended by federal prosecutors. Purnell Peace was sentenced to 18 months in prison, the highest end of his sentencing guideline range. Quanis Phillips, a friend of Vick's since middle school, was sentenced to 21 months, the middle range of his guideline.
United States District Judge Henry E. Hudson called what happened to the dogs "a tragedy." "You may have thought this was sporting, but it was very callous and cruel," Hudson told Phillips. Hudson did not go along with Assistant U.S. Attorney Michael Gill's recommendations that he sentence Peace and Phillips to the low end of the sentencing guideline range....
Vick, the suspended Falcons quarterback, reported to prison last week ahead of his sentencing hearing. The sentences of Peace and Phillips may be an indication of what Vick will receive at his Dec. 10 hearing. A fourth co-defendant, Tony Taylor, will be sentenced on Dec. 14. All four pleaded guilty in August for their roles in a dogfighting operation known as Bad Newz Kennels at property Vick owned in Surry County, Va. The plea agreements reached by all four co-defendants, and subsequent motions, call for a sentences of 12 to 18 months under the federal sentencing guidelines for Vick and Peace. Phillips' guideline range was 18-24 months because of prior criminal convictions.
Though I suppose Vick and his legal team should be glad to hear that Judge Hudson stayed within the suggested guideline ranges, the fact that Judge Hudson went higher than prosecutors recommended should keep Vick from making too many plans for 2008. Of course, Vick's legal team can suggest unique factors in the hope of softening Judge Hudson's view of what prison term is "sufficient, but not greater than necessary" for Vick. But I think the betting line over/under on Vick's likely sentence has to go up a bit after today's sentences.
Some related Vick posts:
Long sentences for a midwestern variation on a modern Rodney King episode
A helpful reader sent me news of this notable federal sentencing story from Wisconsin:
Three fired Milwaukee police officers were sentenced to lengthy federal prison terms today for the beating of Frank Jude Jr. Jon Bartlett, was sentenced to 17 years and four months. Daniel Masarik and Andrew Spengler were each sentenced to more than 15 years....
Bartlett said he had been overwhelmed by everything that had happened since the October 2004 beating and was afraid for his future in explaining his subsequent actions of phoning in bomb threats and trying to buy firearms and ammunition. While he said he accepts responsibility for his actions, he continued to deny that he shoved a pen into Jude's ear. He said he's lost his house, his cars, his motorcycles, his pet, every material object in his life and has been divorced by his wife. He said that the time he has spent in jail he used to examine his life and has found God and reconnected with his family.....
Bartlett, 36, Masarik, 27, and Spengler, 28, were convicted after a nearly three-week trial in July of conspiring to violate the civil rights of Jude and his friend Harris and of assaulting Jude while acting as officers. The assaults happened outside an off-duty officers' party at Spengler's house in 2004. Four other former officers pleaded guilty to federal charges. Two have been sentenced and two are set to be sentenced Dec. 6. It is the largest criminal prosecution of police officers in modern Milwaukee history.
A state jury acquitted Bartlett, Masarik and Spengler on all but one count in May 2006, setting the stage for a federal investigation — and eventually an indictment — a year ago. Bartlett, Spengler and Masarik have been jailed since their convictions. Bartlett already was being held because of two earlier unrelated felony convictions.
Jude, who is biracial, and Harris, who is black, both said their white attackers used racial slurs. From the outset, the investigation was poorly handled. Suspect officers were allowed to talk with each other or leave the scene, little physical evidence was collected and investigators said they ran into silence from officers who claimed they saw nothing. Several of those officers later admitted their guilt in the case when the FBI investigated.
More on the trial penalty's impact in white-collar cases
The urge to find guilt has overwhelmed the presumption of innocence on which Anglo-Saxon justice is based.... Plea-bargaining is effective because of four salient features of American justice: the exceptional severity of punishment; the justified terror of what might happen in prison; the uncertain outcome of fighting cases before juries; and the possibility of obtaining a far lighter sentence by agreeing to pleas of guilty.
In the case of the NatWest three, the accused faced the possibility of up to 35 years in prison for their alleged offences. It is a reflection of the gulf in culture that has grown up between the US and the UK that what are in effect life sentences might be imposed for their alleged involvement in helping Andrew Fastow, then Enron’s chief financial officer, defraud Enron. Such a sentence would be far longer than all but the tiniest proportion of murderers could expect to serve in the UK. Yet, apparently, it is regarded as perfectly reasonable in the US....
Now imagine that you might face such a sentence if found guilty. Imagine, too, that you believed yourself innocent of all charges, but recognised the great complexity of the case and the ease with which a prosecutor might twist evidence against you before an uninformed (perhaps prejudiced) jury. You might suppose you had a one-in-five chance of being found guilty. That would be particularly plausible if you had run out of financial resources and so were unable to retain a first-rate legal team. What would you do if the prosecutors offered a plea bargain, under which you would serve just 37 months in prison in your home country (and pay $7.3m in restitution to the Royal Bank of Scotland, now the owner of NatWest)?
The answer is that most people would plead guilty, not because it was true but because it is what any risk-averse human being would do. To my mind, this system is tantamount to extracting confessions of guilt under a form of psychological torture. That torture consists of the reasonable fear of being found guilty and fear of the length of time one might then serve in prison and of what might happen while one was there. A ll but exceptionally brave people will confess to almost anything to escape even the possibility of torture. In the same way, the majority of people would surely confess to almost anything to avoid the possibility of spending the rest of their lives in prison.
Recognition of the meaninglessness of confessions extracted under threat of torture was the main reason civilised jurisdictions abandoned its use. The same objection applies to pleas of guilty made under the kind of plea bargaining employed in the case of the NatWest three. Let me be clear: I am not asserting that the men are innocent. But the fact that they have made a plea of guilty does not prove their guilt. It could just as well show that the US judicial system has a potent machine for extracting pleas of guilty to lesser charges. In this way, it has also effectively eliminated a presumption of innocence.
UPDATE: Tom Kirkendall at Houston's Clear Thinkers now has this long post examining "The real NatWest Three deal."
November 29, 2007
A turning point on sex offender residency restrictions?
I am pleased to see this new article from the Kansas City Star entitled "Georgia ruling on sex offenders prompts other states, including Missouri, to re-examine laws." Here is how it starts:
Georgia Supreme Court ruling has refueled the debate on whether states should restrict where sex offenders live. The Georgia court struck down its residency restrictions last week, giving opponents of such buffer zones hope that other state laws will be reviewed and possibly overturned....
At least 21 states — including Missouri — have laws that ban registered sex offenders from living within a specified distance of schools, day-care centers and in some cases parks, swimming pools and bus stops. After high-profile child abductions and sexual assaults, parents across the nation fought for the buffer zones, urging lawmakers to protect their children from sexual predators.
Some authorities think the laws, if properly enforced, are helpful. “I do think there’s an increased danger if a sex offender is in close proximity to children that they’ll re-offend,” Platte County prosecutor Eric Zahnd said. “Many are pedophiles in the truest sense of the word.”
But for the past three years, opposition to residency restrictions has grown. Opponents say buffer zones create a false sense of security for parents because offenders are restricted only in where they live, not in where they go. Also, ... in the vast majority of cases children know their molesters....
Opponents also say that residency restrictions lead many offenders to stop registering, which they are required by law to do; become homeless; or move to rural areas where they can’t be easily tracked. In Iowa, where courts have upheld the buffer zones, authorities estimate that they have lost track of many offenders and say it will only get worse.
That’s why Georgia’s ruling was “monumental,” said Corwin Ritchie of the Iowa County Attorneys Association. “When these laws were first bantered about, they sold an awfully convincing bill of goods, that they are awfully good safety measures,” Ritchie said. “I think in Georgia they are seeing the full impact of the unintended consequences and saying this is not constitutional.”
I hope it is true that the Georgia Supreme Court's recent ruling in Mann (discussed here and here) starts to turn the tide on residency restrictions — or at least leads to more inquiries about the efficacy of these laws. However, because Mann is based on a contestable Takings theory, I am not yet confident that we are at a sea change moment with these laws.
Latest FSR issue on "Learning from Libby"
I am pleased to report that, just in time for the holiday clemency season, the latest issue of the Federal Sentencing Reporter examining the Libby commutation has gone to press. The opening commentary to this FSR issue, which I co-authored FSR fellow Aly White, is entitled "Looking at the Libby Case from a Sentencing Perspective" and can be downloaded below.
- Douglas A. Berman & Alyson S. White, Looking at the Libby Case from a Sentencing Perspective [Available here: Download 20.1 Ed Obs.pdf]
- Margaret Colgate Love, Reinventing the President’s Pardon Power
- Molly M. Gill, Into the Bottomless Black Box: The Prisoner’s Perspective on the Commutation Process
- Keith Heidmann, Can I Get What Lewis Libby Got?
- Stephanos Bibas, Rita v. United States Leaves More Open Than it Answers
- Sentencing Memoranda Submitted in US v. I. Lewis Libby
- Statement by the President on Executive Clemency for Lewis Libby
- Testimony before House Judiciary Committee on Libby Commutation
- Post-Clemency Sentencing Ruling by Judge Walton in US v. I. Lewis Libby
- US Sentencing Commission Research Memorandum, Analysis of the Impact of the Crack Cocaine Amendment if Made Retroactive
Great recent commentary on federal criminal justice issues
I am consistently impressed with the columns on criminal justice issues done by Debra Saunders of the San Francisco Chronicle (though I am surprised she is described on the paper's website as someone who provides "op-ed commentary with a conservative edge"). And thanks to a helpful colleague, I see that Saunders has authored these three strong pieces on federal criminal justice issues recently:
- "Free Clarence Aaron" (about an overpunished federal defendant meriting clemency)
- "Willie Horton 2008" (on the politics of crime and punishment in the presidential campaign)
- "Federal prosecutors on steroids" (on the Barry Bonds indictment)
Candidates asked "what would Jesus do" about the death penalty
Though I did not get a chance to watch the YouTube/CNN Republican debate last night, I saw highlights of the clip in which a young person asked the self-proclaimed Christian conservatives to answer the question "what would Jesus do" about the death penalty. This entry from the Chicago Tribune's political blog provides more details on the question and the evasive answers given by two candidates. When pressed for an answer, Mike Huckabee said "Jesus was too smart to ever run for public office. That's what Jesus would do."
Because I find the intersection of religion and politics very interesting, I was sorry to hear that not all the candidates had to respond to this question. (The great irony, of course, is that Jesus himself was subject to the death penalty, a point that I do not think was mentioned.)
Some related posts on victims, religion and the death penalty:
- Fascinating NY Times piece on victims, religion and the death penalty
- Senator Brownback questions death penalty and culture of life
- Debating religion and the death penalty
- New DPIC page on religion and the death penalty
- New resource examining religion and the death penalty
- Remarkable circuit judge speech on capital punishment at mass
- Sister Prejean's powerful perspective
Inequities and uncertainties in federal death penalty
As we move into the third month of the Baze-ian moratorium on executions created by the Supreme Court, I continue to wonder how a halt in execution might be impacting the day-to-day administration of the death penalty. This AP piece from West Virginia notes that Baze "has prompted a federal judge to postpone sentencing two Mingo County residents who face the death penalty for murdering a drug informant." This local piece discussing the same case also details interesting defense arguments that are being raised. Here are snippets:
Two Mingo County residents unfairly face execution for murdering a federal drug informant in 2005 because the victim was a white woman, their lawyers said in federal court Wednesday. Earlier this year, George M. “Porgy” Lecco, 58, and Valerie Friend, 45, were convicted of murdering Carla Collins because she gave a federal drug task force information about a cocaine ring operating out of Lecco’s pizzeria in Red Jacket. Jurors sentenced the pair to death, which is possible in federal court even in states like West Virginia that do not have capital punishment.
Kevin McNally, one of Friend’s lawyers, said Wednesday he had recently completed an analysis of more than 1,000 federal death penalty cases. Only 10 percent of the victims were white women, he said. When those cases go to a jury, half of them result in a death sentence, he said. The unfair application of the death penalty depending on the race and sex of the victim makes it unconstitutional, he argued. “If Congress passed a law that killers of white females should [overwhelmingly] receive the death penalty, you would strike that down in a heartbeat,” McNally told U.S. District Judge John T. Copenhaver Jr. “Essentially, that’s what’s happening.”
McNally, a member of the anti-capital punishment Federal Death Penalty Resource Project, asked the judge to postpone Lecco and Friend’s formal sentencing until he can file a written brief describing his findings. He said it was “irrational” for American juries to recommend execution for Friend, a middle-aged mother of five with little or no criminal history, when multiple murderers, terrorists, and gang members who killed again while in prison are given life sentences. “I use the word ‘insanity,’” he said.
Some related posts on the federal death penalty:
Should Michael Vick's federal sentencing be concerned with gang tackling?
As this CNN piece details, "Michael Vick has agreed to pay nearly $1 million for the care of about 54 pit bulls found on his property during a dogfighting raid." In addition, earlier this week Vick learned that a trial on state dogfighting charges has been set for April. And, according to the CNN piece, there is lots of evidence that Vick's financial condition is deteriorating even faster that his personal reputation.
An interesting legal question raised by all of these developments concerns whether they should lead to a reduced federal sentence because of all the collateral consequences Vick has suffered. There are lots precedents for cutting Vick a federal sentencing break because of all the other forms of punishment he is enduring (ranging from the Supreme Court's decision in Koon to the President's commutation in Libby).
Some related Vick posts:
November 28, 2007
Any early predictions for Lord Conrad Black's fate?
I have been getting lots of media calls (mostly from folks with great accents) because the parties public objections to the presentencing report for Conrad Black have been submitted this week. Though the PSR is not a public document, this effective news overview highlights that it seems the PSR has rejected some of the government's boldest sentencing suggestions.
Though I have never followed this case closely, I know there are some interesting acquitted conduct issues lurking, in addition to all the usual white-collar issues (including whether he will get bail pending appeal). And I believe that US Attorney Patrick Fitzgerald --- remember him? --- is seeking a sentence measured in decades, while the defense is seeks a sentence measured in months. Of course, in all likelihood, the sentencing judge will end up between the parties and have a number with years. Any predictions about what that number will be, dear readers?
Assessing and reflecting on the trial penalty
Tom Kirkendall at Houston's Clear Thinkers has this great new post entitled "Hedging the trial penalty." Here is a taste:
Although some have questioned his business ethics, no one has ever questioned that legendary Houston oilman Oscar Wyatt is good at hedging risk. After Wyatt was sentenced yesterday to a year in prison as a result of his plea deal, my sense is that Wyatt hedged the trial penalty risk (i.e., a life sentence) in an reasonably effective manner.
Meanwhile, in another plea deal, a tenured economics professor at the University of Pennsylvania faces a likely prison sentence of 4½ to seven years for bludgeoning his wife to death. The professor says he "just lost it." What must Jamie Olis think about that as he finishes serving what will almost certainly be a longer sentence than the professor will serve?
And what about Chalana McFarland, a first-time offender who was sentenced to 30 years in prison in connection with a mortgage fraud scheme....
Is the draconian trial penalty in the American criminal justice system really generating the type of results that a truly civil society wants?
I think about these issues a lot because the most extreme sentence almost always involve some kind of trial penalty: consider, for example, the reality that Genarlow Wilson and Weldon Angelos and border agents Ignacio Ramos and Jose Compean were all offered pleas deal that would have resulted in prison sentences years or even decades shorter than what they received after trials (in which, by the way, there were acquittals on some counts).
More concretely, I wonder if anyone has tried to do a serious empirical analysis of the extent of the trial penalty in federal white-collar prosecutions (post Sarbanes Oxley). My anecdotal impression is that the trial penalty in some large corporate cases is now decades long. If some Justices or legislators really cared about the right to a jury trial, it is high time some more attention is given to this ugly reality.
A helpful list of blawgs from the ABA Journal
As How Appealing details here, the ABA Journal has created this "Blawg 100" list. Though I am biased toward the list because I am on it (and because it describes my commentary as avant-garde), I think it is fair for me to assert that the list provides a terrific "blogroll" for lawyers looking to keep up with legal news and ideas.
Relatedly, the magazine has this feature entitled "ForeBlawggers: Seven lawyers who started the blawg revolution." I'm sold on most of ABA Journal's picks for founding bloggers, though I think a few other law professor bloggers (e.g., Althouse, Banbridge, Balkin, Leiter, Lessig) might have merited a place on the ForeBlawggers list.
Second Circuit finds problem with upward enhancement
Harlan Protess at the Second Circuit Sentencing Blog has this speedy coverage of what he calls a "Major Relevant Conduct Decision By The Second Circuit." Here is how Harlan describes today's work by a panel in US v. Juwa, No. 06-2716 (2d Cir. Nov. 28, 2007) (available here):
Notwithstanding an advisory Guidelines range of 24-30 months for a guilty plea to one count of possession of child pornography, Juwa was sentenced to 90 months imprisonment. In declaring its reasons for the upward departure, the district court cited the fact that Juwa had engaged in sexual conduct with a minor "on repeated occasions." Yet Juwa had only indicated his intent to plead guilty to one count of felony sexual abuse in a parallel state case. It was therefore unclear to the Second Circuit to what extent the district court impermissibly based its sentencing enhancement on unsubstantiatied charged conduct, thereby rendering the 90 month sentence procedurally unreasonable. The Second Circuit ordered a reversal and remand.
I hope to have more on this decision once I get a chance to read it.
UPDATE: Though I was hoping for more from Juwa given its strong panel, the decision has some useful (though tepid) language about a "a defendant's due process right to be sentenced based on accurate information." What really makes the case interesting are its notable facts and dyanmic issues of federalism, victims rights, and prosecutorial discretion that are entirely avoided by the written opinion.
Restitution, victim rights and judicial activism
Thanks to this post at Crime & Consequences, I see that earlier this week the California Supreme Court ruled in People v. Giordano, S138382 (Cal. Nov. 26, 2007) (available here), that a sentencing judge can order restitution to the spouse of a homicide victim for his or her future economic losses. The majority opinion includes an effective overview of the evolution of the state’s restitution scheme. And the lone dissenter, Justice Kennard, indirectly accuses the majority of inappropriate judicial activism based on their personal sympathies for the victim. Here is how the dissent begins:
The majority holds that in a criminal proceeding the sentencing court may order a defendant who has been convicted of a homicide crime to pay the deceased victim’s surviving spouse, as restitution, a portion of the estimated income that the deceased victim would likely have earned. In the tragic circumstances of this case, that holding is certainly appealing. But the Legislature has established other methods by which a surviving spouse may obtain restitution for loss of economic support resulting from a homicide victim’s death — the surviving spouse may bring a civil wrongful death action (Code Civ. Proc., § 377.60) against the defendant or apply to the state Restitution Fund established for crime victims (Gov. Code, § 13950 et seq.). A close review of the pertinent legislative scheme reveals several reasons to doubt that the Legislature has, in addition to these two clearly established methods for obtaining restitution for lost support, also authorized sentencing courts to include this category of loss in a direct restitution order. It seems more likely that the Legislature reasonably decided that the criminal sentencing process is ill suited to making the often exceptionally complex damage calculations that are required.
Because I do not think the term "judicial activism" has any real meaning (and have been particularly troubled by its use as an epithet), I do think the California Supreme Court might be accused in this case of "making policy from the bench." Apart from the specific ruling here (which also merits comment), I wonder what commentors think about the concern that the Justice here are letting personal policy views color their legal analysis.
Who will shape the future of technocorrections?
Among lots of great new posts at Corrections Sentencing is this item noting that the Baylor College of Medicine has a new program focused on some issues that may arise in many future debates of technocorrections. The program's webpage is at this link, and here is part of its self-description:
Baylor College of Medicine’s Initiative on Law, Brains and Behavior addresses how new discoveries in neuroscience should navigate the way we make laws, punish criminals, and develop rehabilitation. The project brings together a unique collaboration of neurobiologists, legal scholars, ethicists, medical humanists, and policy makers, with the goal of running experiments that will result in modern, evidence-based policy.
Emerging questions at the interface of law and neuroscience include: .... Can novel technologies such as brain imaging be leveraged for rehabilitation? How should juries assess responsibility, given that most behaviors are driven by systems of the brain that we cannot control?
In conjunction with study and development of policy, the initiative will fuel the development of new technologies for diagnosis and rehabilitation — for example, describing neural signatures that predict recidivism, and developing feedback in real-time brain imaging as a strategy for rehabilitation.
I have long expected that private industry and market forces would be the primary influences on the early development of technocorrections like GPS tracking and drug therapies (and a recent LA Times article confirmed the importance of economics). This new project is an encouraging sign that persons with real medical knowledge might take on a leadership role in some areas of technocorrections.
Canadian politicians punishing mandatory minimum drug sentencess
The CanWest News Service has this interesting article highlighting that the debate over mandatory minimum drug sentencing is spreading north of the boarder. The article is entitled "Ottawa intent on minimum sentences despite suggested ineffectiveness," and here are excerpts:
Federal Justice Minister Rob Nicholson is pressing ahead with plans to create mandatory minimum prison terms for drug crimes in spite of two studies prepared for his own department that say such laws don't work, and are increasingly unpopular as crime-fighting measures in other countries.
"Minimum sentences are not an effective sentencing tool: that is, they constrain judicial discretion without offering any increased crime prevention benefits. Nevertheless, mandatory sentences remain popular with some Canadian politicians." That's one conclusion of a 2005 report prepared for the Justice Department...
Despite such conclusions, the Conservatives unveiled legislation last week to create mandatory minimum prison terms for drug possession, production and trafficking. The automatic minimum jail terms range from six months for growing and selling a single marijuana plant to three years for producing any quantity of coke or crystal meth in a home lab. A clause in the bill would allow judges to exempt certain offenders from prison if they pass a court-monitored drug treatment program.
The proposal has been widely criticized as counter-productive by criminal lawyers, criminologists and at least one former Canadian judge. Those criticisms appear to be backed up by the government's own research.... "Severe MMS seem to be least effective in relation to drug offences," said the 2002 study. "MMS are blunt instruments that provide a poor return on taxpayers' dollars."
Nicholson did not respond to a request for an interview on the subject Tuesday. "Drug trafficking, grow-ops, a whole host of activities, have become much worse in recent years," he said last week as he introduced the changes. "I think Canadians and most people will applaud this move."
That, says one observer, is the main reason for the legislation, whether or not it is passed by Parliament. "This is patent stupidity," says Eugene Oscapella, a criminal lawyer who teaches drug policy at the University of Ottawa. "The only excuse I can think of, for why the Conservatives would announce mandatory minimums, is the perceived political mileage this will earn them among certain segments of the public."