December 8, 2007
Reviewing California's prison problems
This AP story provides the latest update on California's continuing prison woes. Here are excerpts:
When California adopted its criminal sentencing code 30 years ago, a state appeals court marveled that it was virtually incomprehensible, comparing it to income tax forms and insurance policies. The appellate judges wondered if the Legislature had used "some long departed Byzantine scholar to create its seemingly endless and convoluted complexities."
Since then, California has added more than 1,000 felony sentencing laws and more than 100 other changes that can lengthen prison terms. As a result, the state's prisons are so dangerously jammed that there is a possibility federal courts could cap the population, potentially forcing the early release of some inmates. The number of inmates in California prisons has soared, from nearly 25,000 in 1980 to more than 170,000 this year. The state has an incarceration rate of 475 per 100,000 residents, well above the national average of 445 per 100,000. So far, political efforts to simplify the convoluted process have failed....
Proposals by Gov. Arnold Schwarzenegger and Democratic lawmakers to create a commission to review sentencing collapsed this year amid partisan infighting. Some feared that a commission could open prison doors too wide. "We are jammed up with this situation right now because we have fallen in love with one of the most undocumented beliefs: That somehow you get safer if you put more people in jail," Senate President Pro Tem Don Perata said this spring....
A little weekend campaigning
This post is a weekend pitch asking readers to go over to the ABA's Blawg 100 list and vote here for this blog as among your favorite criminal justice blogs. This is my first campaign post, precipitated by the fact that I have now fallen to third in the voting behind a "blawg" that only does about one or two posts each week.
UPDATE: As of Sunday morning, I've jumped to first place. Thanks everyone, and keep stuffing this virtual ballot box on my behalf.
Another bipartisan call for President Bush to commute border agent sentences
As detailed in this Washington Times article, "Rep. Bill Delahunt, Massachusetts Democrat who heads the subcommittee on international organizations, human rights and oversight" has called upon President Bush to "immediately commute the prison sentences of two former U.S. Border Patrol agents convicted in the shooting of a drug-smuggling suspect." This story from CNSNews.com provides more details on the bipartisan calls for a commutation in this case:
Two Democrats and one Republican introduced a House resolution Thursday calling for the release of two jailed ex-Border Patrol agents by Christmas. The former agents, Ignacio Ramos and Jose Compean, were sentenced to 11 and 12 years respectively in federal prison for shooting and wounding a suspected illegal alien drug smuggler in the rear.
"President Bush can correct a gross miscarriage of justice with the stroke of a pen," said Rep. William Delahunt (D-Mass.), who co-sponsored a resolution to commute the sentences of the two men. "This resolution will put Congress on the record demanding that he do just that," Delahunt continued. "I hope that the president will allow these men to see their families in time for Christmas." Delahunt was joined by Reps. Silvestre Reyes (D-Texas) and Dana Rohrabacher (R-Calif.) in sponsoring the legislation....
Last month, the suspected drug smuggler, Osvaldo Aldrete-Davila was arrested for attempting to smuggle additional drugs into the country even while he had legal immunity because of the earlier case, in which he testified against the two Border agents.
Some prior posts about the Border Agents case:
Quite a Monday on tap for federal sentencing fans
Monday is the scheduled sentencing date for two high-profile and very distinct federal defendants: Conrad Black and Michael Vick. (This new AP story provides some Black background, and this new local piece provides some Vick basics)
In part because Black lost at trial and Vick pleaded guilty, it is virtually assured that Black will be getting a much longer sentence than Vick. But there is a lot of legal and factually uncertainty surrounding both cases as sentencing approaches. Moreover, Black is still free on bail and could remain free for a long time if he is granted bail pending appeal. Meanwhile, Vick is already serving his (not yet imposed) federal sentence, and he could very well complete his sentence before Black starts his (again, if Black gets bail pending appeal).
In addition, there is a chance (though I think a slim one) that the Supreme Court will hand down opinion in Gall and Kimbrough on Monday. And, if that's not exciting enough, on Tuesday we may get a decision from the US Sentencing Commission concerning the retroactivity of its new crack guidelines (basics here). I may need to keep celebrating Repeal Day to stay calm during all the sentencing excitement.
December 7, 2007
Weekend reading on "Restoring Ideals of Humane Punishment"
This week included new prison statistics, a new report on racial disparities in incarceration, and Hillary Clinton's stunningly disappointing opposition to greater sentencing justice (details here and here). Against that backdrop, I am pleased to take home to read this new piece by Eva Nilson just appearing on SSRN, entitled "Decency, Dignity, and Desert: Restoring Ideals of Humane Punishment to Constitutional Discourse." Here's the abstract:
American punishment today is degrading, indecent, and harsher than deserved despite a Constitution designed to protect people from cruel and unusual punishment. Unfortunately, the U.S. Supreme Court's response to the increasing inhumanity of contemporary punishment has been to reduce its Eighth Amendment jurisprudence to tidy categories, legal fictions, and hollow phrases. Absent from the discourse is any acknowledgment of the actual day-to-day experience facing the convicted person, or any suggestion that, although punishments can be degrading, they need not be. The case for treating a convicted person with respect for his human dignity, and for constitutional scrutiny of punishment as it is actually experienced, is rarely made.
This Article seeks to present that case. Part I demonstrates that sentences are longer and meaner, prison conditions are more degrading and dangerous, and post-release reintegration is severely hobbled by numerous barriers that guarantee a permanent underclass. The second part explains how the Court's narrow and formalistic reading of the Eighth Amendment has produced a profound legal and moral blindness to the constitutional infirmities these punishments present. In the third part, the Article suggests avenues to more robust conceptions of human dignity and decent treatment that may still be found in the Constitution and in emerging global norms.
Another "priors" case with some rule of lenity spicing
This new post at SCOTUSblog provides a bit more background on Burgess, the most sentencing-focused case in today's big bunch of cert grants. Here are the Questions Presented in the case:
1. Whether the term “felony drug offense” as used in federal statute requiring imposition of enhanced mandatory minimum 20 years’ imprisonment when drug offender has “prior conviction for a felony drug offense” must be read in pari materia with federal statutes defining both “felony” and “felony drug offense”, so as to require imposition of minimum 20-year sentence only if prior drug conviction as both punishable by more “than one year in prison and characterized as a felony by controlling law.
2. When the court finds that a criminal statute is ambiguous, must it then turn to rule of lenity to resolve ambiguity?
By my count, Burgess is the fourth case this Term dealing with how federal statutes define state prior offenses for purpose of certain sentencing enhancements. Because these issues arise a lot, and because they can often generate circuit splits, I am not surprised these case often garner attention in the cert. pool. However, with so many other issues competing for the Justices' attention, I suspect a few SCOTUS watchers are not that excited that more than 5% of the argued docket this term is focused on these state priors issues.
Thoughtful Blakely opinion from Arizona Supreme Court
With all the on-going federal sentencing stories these days, I cannot keep track of all the notable Blakely issues still being worked out by state courts. Fortunately, a friend of the blog alerted me to this new opinion from the Arizona Supreme Court in State v. Price (available here) which this opening paragraph effectively previews:
We accepted review to determine whether the defendant's sentence was aggravated in violation of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), and Blakely v. Washington, 542 U.S. 296, 305 (2004), which hold that the Sixth Amendment affords a right to have a jury, rather than a judge, determine any fact, other than a prior conviction, that increases a defendant’s statutory maximum sentence. The trial court imposed an aggravated sentence based on facts that the State now concedes were not found in compliance with Apprendi and Blakely. We hold that the case must be remanded for resentencing and reject the State’s suggestion that, as a reviewing court, we should find other aggravating facts to uphold the flawed sentence.
In addition to a thoughtful majority opinion, Judge Hurwitz has a strong concurrence that starts to crack another tough Blakely nut, but is "content to leave final resolution of this conundrum to another day."
A bunch of new cert grant at SCOTUS
Over at SCOTUSblog, Lyle Denniston has this post entitled "Court grants six new cases." Here are snippets from the post, which spotlights that a few of these grants should interest sentencing fans:
The Supreme Court agreed on Friday to rule on claims by two U.S. citizens being held by the U.S. military in Iraq that they have a right to challenge their detention there and future transfer to Iraqi authorities — one of them to be tried, the other to be executed for a prior Iraqi conviction. The cases, drawing the Court more deeply into defining the rights of detainees, will be heard together, probably in March. The cases are Munaf v. Geren (06-1666) and Geren v. Omar (07-394)....
The Court also agreed to hear cases on the rights of disabled workers to be assigned to open jobs ahead of other workers (Huber v. Wal-Mart, 07-480), on enhanced federal sentences based on prior state conviction for possession of cocaine (Burgess v. U.S., 06-11429), on the power of states — or lack of it — to require proof of greater mental capacity for an accused individual to act as his own lawyer than is required to stand trial (Indiana v. Edwards, 07-208), on the scope of the bankruptcy law’s exemption from “stamp taxes” and other transfer taxes imposed by states and cities (Florida Department of Revenue v. Piccadilly Cafeterias (07-312), and on the proof the federal government must offer in order to gain added prison time for someone accused of carrying an explosive during commission of a felony (U.S. v. Ressam, 07-455).
Do USSC reappointments show support for new crack guidelines?
Intriguingly, this White House press release detailing some new Presidential nominations suggests that George W. Bush is happy with the recent work of the US Sentencing Commission. Specifically:
Nominations Sent to the Senate
Ricardo H. Hinojosa, of Texas, to be a Member of the United States Sentencing Commission for a term expiring October 31, 2013. (Reappointment)
Ricardo H. Hinojosa, of Texas, to be Chair of the United States Sentencing Commission. (Reappointment)
Michael E. Horowitz, of Maryland, to be a Member of the United States Sentencing Commission for a term expiring October 31, 2013. (Reappointment)
Given that the biggest actions of the USSC in recent months have been the new reduced crack guidelines and its apparent interest in allowing that amendment to be applied retroactively, I read these reappointments as an indirect blessing of the USSC's recent progressive reform efforts.
Some recent related crack sentencing posts:
- USSC analysis on potential crack amendment retroactivity impact
- A retroactive litmus test on leading Democratic candidates
- Latest FSR issue covers crack sentencing
Tenth Circuit affirms sentence of almost 20 years for "innocent"(?) posession of ammunition
As How Appealing noted here, a split Tenth Circuit yesterday in US vs. Baker, No. 07-3002 (10th Cir. Dec. 6, 2007) (available here) held "that 'innocent possession' is not a defense to being a felon in possession of ammunition." The main legal issues and the (disputed) facts in Baker are quite interesting: the defendant claimed that he found on the ground and picked up a clip of ammunition on Halloween night and was on his way to turn this ammunition in to the police when arrested. Though the story may sound suspicious, the majority rules as a matter of law that even "if a defendant obtains ammunition innocently, with no illicit purpose, and takes adequate measures to rid himself of it as promptly as reasonably possible" he is still criminally liable under the felon-in-possession criminal statutes.
Though the merits of this legal issue divides the Tenth Circuit panel, I am troubled mostly by the long sentence that James Baker ultimately received for his horrific crime of possession a clip of ammunition: a (within-guideline) sentence of 235 months imprisonment! Because of prior convictions, Baker was subject to armed career criminal enhancement, and thus he will now be in federal prison until roughly the year 2025 for possessing a clip of ammunition.
Though Baker did contest the application of a guideline enhancement based on his prior record, it appears that Baker did not contest the reasonableness of his sentence. I am not quite sure why, especially given the fact that the within-guideline sentence given here does not seem to reflect the "nature and circumstances of the offense" as 3553(a)(1) requires. Indeed, the dissenting opinion, though not focused on reasonableness, highlights the realities of the Baker ruling:
The majority’s holding is that, even if the jury believed every part of Baker’s testimony, it is in keeping with Congressional intent that Baker serve nearly 20 years in prison for his conduct. I cannot agree that Congress intended such a harsh and absurd result.
Because the Baker ruling is contrary to a DC Circuit ruling from 2000, a strong cert petition might get Baker a real shot to garner attantion from the Supreme Court. Indeed, this case seems tailor made for all those Supreme Court clinics looking for good work.
Friday forum: what advice would you give Barry Bonds?
As detailed in this New York Times article, the next official development in the Barry Bonds prosecution takes place this morning. Here are the basics:
Bonds, major league baseball’s career home run leader, is scheduled to make his first court appearance in the case Friday morning. He is expected to plead not guilty to four counts of perjury and one count of obstruction of justice, charges that stem from the government’s assertion that he lied four years ago when he told a grand jury he did not take steroids or human growth hormone.
In the NYT article, Bonds gets some advice from a local expert: "Peter Keane, a 30-year veteran defense lawyer and dean emeritus at Golden Gate University Law School who has studied the case, said his best advice to Bonds would be for him to stop fighting and start negotiating." Similarly, in this USA Today piece, has a formal federal prosecutor also suggesting a plea and it notes sentencing prospects: "Keane and [former U.S. attorney] Matt Orwig agree that, even if Bonds accepts a plea bargain instead of going to trial, he's certain to serve time in jail. Were he to get convicted, Bonds faces up to 30 years in prison, though lawyers say 24 to 36 months is a more likely sentence."
Notably, as this Wall Street Journal report documented, Barry Bonds is not eager to pay top dollar for legal help. So I thought I would open up a Friday forum for folks to use the comments here to give Barry some free advice.
An intriguing new blog focused on judicial independence
l I received an e-mail from folks at the Justice at Stake Campaign announcing an interesting looking new blog. Here part of the pitch I received:
A new legal blog, Gavel Grab, [will] focus on attacks on the independence and impartiality of the courts — in judicial elections, in legislatures, and on the airwaves. We launched this week with posts on the Supreme Court’s Guantanamo cases (by Slate’s Dahlia Lithwick), growing calls for a Wisconsin high court justice to recuse herself from a campaign supporter’s case, and a look at how the Terri Schiavo episode continues to ripple through the Presidential primaries. And each day our staff provides links to interesting legal stories and blog posts.
As regular readers know well, sentencing decisions are often the focal point for judicial attacks. I'll be reading this new blog regularly.
December 6, 2007
Eighth Circuit vacates above-guideline sentence
Today in US v. Wiley, No. 06-3534 (8th Cir. Dec. 6, 2007) (available here), the Eighth Circuit vataced an above-guideline sentence. Here is an unofficial summary of Wiley from the court's website:
Defendant did not forfeit his ability to challenge the reasonableness of his sentence when he failed to make an objection to the length of the sentence after the court decided at the sentencing proceeding to vary upward from the advisory Guidelines range; given that the Guidelines took into account defendant's recidivism and his commission of the offense while incarcerated, the recommended sentence range did not so substantially under-represent the seriousness of defendant's criminal history as to justify imposing a sentence almost twice as long as the top of the advisory Guidelines range; 60 month sentence on this record was unreasonable, and the matter is remanded for resentencing. Judge Gruender, concurring.
"Speak out, judges"
The title of this post is the title of has this op-ed by former state judge James Dolan in today's Boston Globe. Here are snippets that I hope every judge involved in an important criminal case takes to heart:
During my 26 years on the bench, I frequently saw colleagues hammered for making "mistakes" - often in the context of a bail or restraining order hearing in which the judge released a defendant who went on to harm someone.
Most simply took the beating without responding, on the grounds that it would be an ethical violation to make a statement regarding a pending case....
Unfortunately, the failure of judges to promptly explain controversial decisions reinforces the public view that they are arrogant and unaccountable. This damages not only the judge but also the court system.... The public will tolerate a mistake, but people understandably refuse to accept the stonewalling evident in the stock phrase: "I cannot comment on a pending case."
There is a difference between commenting on a case and explaining a decision. Granted, the judge should not hold a press conference or go on a talk show. But where is the harm in writing a memorandum explaining the basis of a decision? Is a court proceeding jeopardized by a judge explaining a bail decision?
When a tragedy occurs, the public's rush to judgment is fueled by talk show hosts and the press, often reacting out of hindsight - and with little or no information about what prompted a judge's decision. Intent upon blaming someone for a tragedy, the judge who supposedly "should have known what was going to happen" is the obvious target.
In those circumstances, a judge's silence underscores the perception that the judge was wrong and his or her actions indefensible, and that the court system is unresponsive.
Judges balance the risks of flight and harm against the right of a defendant to be free pending trial. A judge who holds a defendant even when the risks are slight knows he or she is not likely to be criticized. But judges cannot and should not hold everyone. There is always the risk that a released defendant will harm someone. Tragedies have happened before, and they will happen again....
The public reasonably expects public officials to give reasons for their controversial decisions.... The public has a right to know. I expect most judges want the right to explain.
Any reports or news from today's House hearing?
I have been away from the computer all day, but I wonder if anyone followed this hearing today in the House of Representative's Subcommittee on Crime, Terrorism, and Homeland Security on "Promoting Inmate Rehabilitation and Successful Release Planning." The list of witnesses looks eclectic and interesting, as is their linked testimony. I'd be grateful to get reader reports in the comments or via e-mail.
Death penalty plea case dying before SCOTUS
Getting on-line in the midst of a day on the road I was intrigued to see this new post at SCOTUSblog reporting that "Dismissal sought in capital plea bargain case." Here are the basics:
One month after the grant of certiorari in a case involving an inmate on Idaho’s death row, attorneys for both the prisoner and the state attorney general’s office have asked the Justices to vacate the Ninth Circuit ruling below and dismiss the case as moot.
That should teach the Justices for taking yet another death case (even though this one raised an interesting plea issue). And now they have more room to finally take up an acquitted conduct case, or the Rule 32 split, or any of a dozen other Blakely/Booker issues that won't be going away anytime soon.
NJ report suggests efficacy of sex offender GPS tracking
Here another boost for technocorrections: a report asserting that "initial data suggests the State Parole Board's GPS monitoring has contributed to a significantly lower recidivism rate than nationwide data indicates for high-risk sex offenders." This line comes from this new document, a "Report on New Jersey’s GPS Monitoring of Sex Offenders" coming from the state's Parole Board.
This local media account of the report provides more basics. Here is a snippet from the account:
Only one out of the state's 225 worst sex offenders, all being monitored by a new satellite-tracking system, was implicated in a new sex crime over a two-year period, the State Parole Board said Wednesday.... "New Jersey is on the leading edge of this GPS monitoring," said Parole Board Chairman Peter Barnes Jr., a former Democratic state assemblyman from Middlesex County and a career FBI agent.
The Parole Board said in a written statement that its load of more than 4,300 sex offenders is one of the largest in the nation, comprising almost a third of all cases handled by parole officers. The one offender arrested out of the 225 being monitored was apprehended at the scene of a rape in April 2006. That case is pending. Nineteen other offenders committed technical offenses, such as not properly wearing the GPS device, in the two-year window.
Some related posts on sex offender GPS tracking:
December 5, 2007
The latest on Offendar
As previewed in this post, Ohio legislators on Wednesday heard about the latest technocorrections idea for keeping track of sex offenders. Here are the latest details from this new AP story:
A tiny electronic device that could warn people when a sex offender is approaching was grabbing attention at the Ohio Statehouse on Wednesday. Offendar, a sex offender radar invented by a northeast Ohio company, is about the size of a key fob and vibrates when picking up the signal from a parolee’s monitoring bracelet from up to 50 yards away.
State Sen. Tim Grendell, a Chester Township Republican who chairs the Senate Judiciary Committee on Criminal Justice, asked the device’s Chagrin Falls makers, Offendar LLC, to host 90 minutes of demonstrations of the patent-pending technology for lawmakers Wednesday....
Not everyone supports the idea. David Singleton, executive director of the Ohio Justice & Policy Center, called the concept “utterly ridiculous and absurd.” He said it plays on fears in the community while penalizing people who have already served time in prison for their crimes. “What are we trying to do, make it impossible for people to get on their feet again and be productive citizens?” Singleton said. “This is crazy and I’m outraged by it, because it doesn’t make my daughter any safer.”
The Cleveland Rape Crisis Center’s Lindsay Fello-Sharpe said nine in 10 sex crime victims are assaulted by a person they know or trust. “This just plays on the great myths out there, such as the stranger danger myth that’s not true,” she said. “It’s sending the wrong message and setting people up with a false sense of security.”
The latest BJS stats on prisoners, probation and parole in the land of the free
Among many holiday season traditions for sentencing fans is the release by the Bureau of Justice Statistics of its national head count of the number of persons in State and Federal prisons, and the number of persons on probation and parole, at yearend the prior year. Here are links to these data-filled reports:
Here are some of the statistical highlights from this press release discussing both reports:
The U.S. adult correctional population — incarcerated or in the community — reached 7.2 million men and women, an increase of 159,500 during the year, the Justice Department’s Bureau of Justice Statistics (BJS) announced today in a new report. About 3.2 percent of the U.S. adult population, or 1 in every 31 adults, was in the nation’s prisons or jails or on probation or parole at the end of 2006.
The number of men and women who were being supervised on probation or parole in the United States at year-end 2006 reached 5 million for the first time, an increase of 87,852 (or 1.8 percent) during the year. A separate study found that on December 31, 2006, there were 1,570,861 inmates under state and federal jurisdiction, an increase of 42,932 (or 2.8 percent) in 2006.
During 2006 the number of inmates under state jurisdiction rose by 37,504 (2.8 percent). The number of prisoners under federal jurisdiction rose by 5,428 (2.9 percent).
In 2006 the number of prisoners in the 10 states with the largest prison populations increased by 3.2 percent, which was more than three times the average annual growth rate (0.9 percent) in these states from 2000 through 2005. These states accounted for 65 percent of the overall increase in the U.S. prison population during 2006. The federal system remained the largest prison system with 193,046 inmates under its jurisdiction.
Repeal Day and the war on drugs
As explained at this website, December 5 is "Repeal Day." As the cite explains, "on December 5th, 1933, Utah, the final state needed for a three quarters majority, ratified the 21st Amendment, repealing Prohibition and restoring the American right to a celebratory drink." Ever the festive patriot, I had a beer with students and a glass of wine at home to honor this uniquely American holiday.
It is interesting to think about the history of Prohibition and the the enactment and repeal of the 18th Amendment against the backdrop of the modern war on drugs. Specifically, this fascinating article in this month's Rolling Stone, entitled "How America Lost the War on Drugs," provides lots of interesting ideas about the market realities surrounding the human affinity for intoxicating substances.
SCOTUS keeps execution moratorium in place
As detailed in this SCOTUSblog post, the Justices continue to block every state effort to go forward with lethal injections. Here's the basics:
The Supreme Court on Wednesday afternoon delayed the execution of Thomas D. Arthur, previously scheduled for 6 p.m. on Thursday. Arthur has a petition pending (Arthur v. Allen, 07-395) challenging the state’s use of a lethal injection protocol to carry out executions.... The Court in recent weeks has not permitted any execution to proceed when the inmate has sought a stay while challenging lethal injection. It is scheduled to hold a hearing on such challenges on Jan. 7 at 10 a.m.
USSC public hearing next week to discuss crack retroactivity
Mark your calender, sentencing fans: as noted on the US Sentencing Commission's website, "a public meeting of the Commission is scheduled for Tuesday, December 11, 2007, at 3:30 p.m., in the Mecham Conference Center, Thurgood Marshall Federal Judiciary Building, Washington, D.C." This official notice provides a bit more background and this enticing agenda:
- Possible Votes on Retroactivity
I think this means we could have a decision on crack retroactivity as early as next week. But the word "possible" in the agenda, of course, might mean that the issue may not be settled that soon.
Some recent related posts:
- USSC analysis on potential crack amendment retroactivity impact
- Thoughtful review of crack amendment retroactivity debate
- Latest FSR issue covers crack sentencing
Ninth Circuit has busy day dealing with sentencing technicalities
The Ninth Circuit has there decision today dealing with three different technical sentencing questions. Based on a very quick scan, the ruling that looks most interesting is in US v. Macias-Valencia, No. 06-10711 (9th Cir. Dec. 5, 2007) (available here), which starts this way:
Does the mandatory minimum sentence of 10 years, prescribed by 21 U.S.C. § 841(b)(1)(A)(viii), apply to a conviction for conspiracy with intent to distribute, and attempted possession with intent to distribute, 50 grams or more of methamphetamine, even when no actual contraband was involved in the commission of the offense? Joining the Sixth Circuit, we answer “yes.”
House hearing on reentry and federal sentence reductions
A helpful reader altered me to the fact that, as discussed in this Houston Chronicle article, the House of Representative's Subcommittee on Crime, Terrorism, and Homeland Security on Thursday morning (Dec. 7) has this hearing scheduled on "Promoting Inmate Rehabilitation and Successful Release Planning." Of course, the Chronicle article, as excerpted below, gives a little different spin to the hearing than its official title suggests:
Drug traffickers, white-collar criminals, corrupt congressmen and thousands of other federal inmates could see their prison time slashed in half if legislation drafted by Rep. Sheila Jackson Lee becomes law. The House Judiciary crime subcommittee on Thursday will examine a bill by the Houston Democrat that would mandate early release for federal inmates convicted of nonviolent crimes if they are 45 or older, have served at least half their sentence and have not engaged in violent conduct behind bars.
Jackson Lee described her legislation as a way of returning nonviolent offenders to society so they can be productive citizens, help their families and reduce spiraling incarceration costs. "This legislation is to reward good behavior," Jackson Lee said in an interview. "It is a process intended to protect the public as well as to provide some relief for the families and these individuals who can be adjudged rehabilitated or ready to be released in some form."
Jackson Lee's proposal could free some high-profile, white-collar criminals from prison early. Among the possible beneficiaries: former Enron executives Jeffrey Skilling and Andrew Fastow, disgraced lobbyist Jack Abramoff, recently convicted Houston oilman Oscar Wyatt and, according to federal Bureau of Prisons estimates, as many as 12,400 others.
Some civil rights advocates have argued that a 1984 law establishing mandatory minimum sentences, aimed primarily at drug offenders, has resulted in harsh penalties for thousands of minority citizens.
House Republicans oppose the bill, which would undo the sentencing structure that Congress imposed in 1984 when it effectively ended parole in the federal prison system and required that most offenders serve at least 85 percent of their sentences. "Democrats should think long and hard before supporting a bill that would severely damage our criminal justice system and could have catastrophic effects on society as a whole," said Rep. Randy Forbes of Virginia, the top Republican on the crime subcommittee.
Not only do I find the hearing itself of great interest, but I think the media and public discussion of the hearing could be very important as prominent candidates on both sides of the aisle are dealing with notable crime and punishment issues.
Some recent related posts:
Bottom-side brief in Baze
Though filed on Monday, I cannot seem to find the State of Kentucky's SCOTUS brief in Baze on line. If/when someone sends the brief or a link my way, I'll post it here.
UPDATE: Ask and yea shall receive. A helpful reader sent me a pdf of Kentucky's brief, which can now be downloaded below.
Apparently now's the time to talk about Huckabee's "Willie Horton"
Way back in March in this post, I highlighted the sentencing story within this fascinating Salon piece discussing the prospects of Republican candidate Mike Huckabee. That story discussed Huckabee's "willie Horton" problem in the form of Wayne Dumond, a rapist paroled in Arkansas when Huckabee was governor who murdered a woman after being released. Perhaps because Huckabee continues to rise in the polls, this story is now garnering new nation attention. Byron York explains in this new item from the National Review Online:
In August, I interviewed former Arkansas governor Mike Huckabee about the case of Wayne Dumond, the convicted rapist who was freed under Huckabee’s administration, only to rape and kill a woman in neighboring Missouri. The crime attracted enormous attention in Arkansas, but at the time of our interview, it had not made its way into much coverage of Huckabee’s presidential bid. “If [Huckabee] continues to rise in the polls,” I wrote, “it’s likely he’ll be talking about it a lot more.”
Now Huckabee is rising in the polls, and sure enough, the Dumond case is attracting more attention. This morning, ABC News ran a report featuring the mother of the woman Dumond murdered, who blames Huckabee for her daughter’s death and vows to do everything she can to stop his campaign. “I can’t imagine anybody wanting somebody like that running the country,” the woman told ABC.
The story seems to be developing from many angles, and here's additional coverage from Murray Waas at The Huffington Post. This item at Monsters and Critics.com simply asks "Is Wayne Dumond Huckabee's Willie Horton?"
The struggle with prison overcrowding in the UK
Just like nearly every state in the US, the UK is struggling with overpacked prisons. This Reuters story details the problems and the government's brewing reponse:
Justice Secretary Jack Straw will reveal on Wednesday how the government plans to deal with the crisis of overcrowding in prisons. He will publish the findings of a review by life peer Lord Carter which newspapers report may controversially recommend keeping convicted offenders out of jail when there is not enough space to lock them up. The review may also propose selling off inner-city jails on prime development land and using the proceeds to build more prison space elsewhere to hold high-risk inmates.
At the end of last week, jails were so full with 81,864 prisoners that 177 offenders were being held in police cells. The government has been forced to release 11,000 prisoners early since June to cope with the lack of cells.
Straw has indicated in recent speeches that he favours a greater use of non-custodial sentences, especially for those given sentences of less than a year. The prison population has been rising because sentences have grown longer, with average custodial sentences from crown courts rising to over 25 months from 20 months between 2005 and 1995.
And this related story from The Times is headlined "Hopes pinned on American-style sentencing grid to reduce prison overcrowding." Here is how it starts:
Radical proposals to examine a US-style system of sentencing intended to control the number of offenders sent to overcrowded jails will be outlined by ministers today, The Times has learnt.
Senior judges have expressed concern that the controversial proposals to review the prison-building programme and the impact of sentencing on population could lead to curbs on their sentencing powers.
December 4, 2007
Local follow-ups to new JPI report on racial disparities
As detailed here, Justice Policy Institute today released a new report that "documents racial disparities in the use of prison for drug offenses in 193 of the 198 counties that reported to government entities." This report seems likely to get more local media attention than most similar reports because this webpage also provides links to an Interactive Map with associated county fact sheets. Indeed, I already see these headlines and stories thanks to Google news:
- Bay Area counties toughest on black drug offenders from the San Francisco Chronicle
- Dane County 3rd nationally in racial disparity from the Wisconsin State Journal
- Forsyth comes up high in rating from the Winston-Salem Journal
I suspect there will be more of these types of stories in local papers int he days ahead.
SCOTUS talks about OJ and ponders the impact of race
Lyle Denniston at SCOTUSblog has this post and Mark Sherman for the AP has this story discussing oral argument today in Snyder v. Louisiana, 06-10119. Lyle's post is titled "Trial judges on trial?" and it starts this way:
The case of Snyder v. Louisiana (06-10119) may live in history as a case about using O.J. Simpson’s legal troubles as a way to “play the race card” before an all-white jury trying a black man. The Supreme Court, in a hearing on Tuesday, showed some fascination with that part of the case. But the decision that ultimately emerges from the Court may also bring a call for trial judges to take a more active role in monitoring the race factor in criminal trials. Justice Anthony M. Kennedy, in fact, implied that there may be a price to pay if judges do not take the hint: they won’t get the usual respect and deference, in appeals, for their conduct of trials.
The oral argument transcript is available at this link.
Padilla sentencing hearing rescheduled
As this AP report details, the upcoming sentencing for Jose Padilla looks like it could be real interesting. But, as the report also details, the sentencing hearing that had been slated to start this week now has been pushed back to January.
Second Circuit confirms writ of audita querela as a viable "hail mary" motion
A tiny per curiam opinion today from the Second Circuit in US v. Richter, No. 06-1930 (2d Cir. Dec. 4, 2007) (available here), has an important sentence that could be a very big deal for criminal defendants needing a special avenue to get into the courthouse door. In Richter, the panel denies a petitioner's writ of audita querela, but has this important line along the way: "if the absence of any avenue of collateral attack would raise serious constitutional questions about the laws limiting those avenues, then a writ of audita querela would lie."
I think this could mean that if you have a really strong substantive claim for attacking a conviction and sentence, but all the courthouse doors are otherwise closed, a writ of audita querela is the answer. Of course, as Baltimore Raven fans know well, even when a last-minute hail mary pass connects, victory is not assured. Still, the Second Circuit's acknowledgement that a writ of audita querela is sometimes available seems of great import.
Another brave new world innovation for dealing with sex offenders
A helpful student alerted me to this fascinating news coming from the great state of Ohio concerning sex offender management. (Technocorrection fans might want to be sitting down when reading this.) Here are the basics:
State Sen. Tim Grendell of Chester Township, a vocal supporter of various measures aimed at getting tougher on crime, says he is excited about a Geauga County company's proposal "to take real-time monitoring of sex offenders to a new level." He has invited the company to make a presentation Wednesday to a Senate subcommittee on a device it is developing and seeking to patent called "Offendar," short for offender radar.
Offendar LLC is marketing it as a "personal threat detection system featuring a key-fob sized electronic device." The device would give the person carrying it "a vibrating, auditory or visual alarm when a sex offender or other person wearing a court-ordered electronic ankle bracelet is in the immediate vicinity." Why is the company proposing it? "The public wants more than after-the-fact tracking of sex offenders. Many people want to know when a threat is in the vicinity so they can take steps to protect themselves and their children before something happens," according to the company's presentation....
Grendell seems to have no reservations about the company's proposal. "In seeing their idea and understanding how it can enhance what Ohio is already doing, I was very impressed," he said in a memo Monday to fellow lawmakers and the media.
As of this writing, I cannot yet find a website for "Offendar LLC." I'm not sure I would be "very impressed" by a company marketing a new high-tech device that does not even have a company website. But maybe Offendar LLC has just been spending all its R&D time on its Offendar device.
UPDATE: Sorry for the snark, Offendar LLC, since now I see the company does that this website at offendar.com.
As regular readers know, I think lots of important technocorrection innovations are inevitable (and will raise all sort of new legal issues), in part because private industry will be devising and marketing new ways to achieve public safety. The work of Offendar LLC, and its ability to quickly get the attention of a prominent state Senator, confirms my views.
Some related posts on sex offender GPS tracking:
More questions about Clinton's opposition to crack guideline retroactivity
This post at the Drug War Chronicle blog asks "Is Rudy Giuliani Shaping Hillary Clinton's Stance on Drug Laws?". The post notes that Clinton's team has defended her opposition to the new crack guidelines being retroactive by citing Giuliani's apparently similar position. Here is the potent end to the potent post:
We must now ask ourselves to what extent Hillary's other drug policy positions have been shaped by Rudiphobia. When she raised her hand in opposition to marijuana decrim, was that for real? Was there a little Giuliani in a devil suit whispering in her ear, threatening to tell the swing voters what a hippie she is? Will she backtrack on medical marijuana and needle exchange if Giuliani says he disapproves?
We can spend eternity smashing minority communities with our drug war hammers at the behest of authoritarian demagogues like Rudy Giuliani. And if no one speaks up, that's exactly what will happen. So if Giuliani wants to publicly embrace racist drug war politics, let him. The antidote to the "soft on drugs" label is to stop looking over your shoulder and start speaking with conviction.
Some recent related posts:
UPDATE: I now see that Celeste Fremon has picked up on this issue in this post at The Huffington Post. I will remain intriguing to see if this issue continue to have traction since, as detailed in this item from Politico, suggesting that "one of Clinton's real vulnerabilities [is the] perception that she's driven by polls, not conviction."
SCOTUS resolves easy(?) ACCA issue, provides tea leaves
As Lyle Denniston reports here at SCOTUSblog, the Supreme Court handed down two opinions this morning, including a unanimous opinion by Justice Ginsburg in Logan v. United States (available here). Here is Lyle's account of the Logan ruling:
The Logan case involved the interpretation of the phrase “civil rights restored” in the federal Armed Career Criminal Act. Those who have been convicted previously of felonies and are then convicted of possessing guns are subject to a maximum sentence of ten years, but that maximum is increased to life for those who have had three prior convictions for violent felonies — including violent misdemeanors. But Congress exempted from that enhancement feature those who have had their civil rights restored. James D. Logan of Janesville, Wis., was convicted of being a felon posseesing a gun and was sentenced to 15 years in prison, based upon three prior convictions for misdemeanor battery — a crime that causes no loss of civil rights. Logan argued that convictions that carry no loss of civil rights should be treated the same as those for which rights were lost then later restored. The Court rejected that claim. “Congress did not include offenders who retained civil rights at all times in its dispensation for offenders whose civil rights have been restored,” Justice Ginsburg said. “We are not equipped to say what statutory alteration, if any, Congress would have made had its attention trained on offenders who retained civil rights.” And, she added, the Court cannot “recast” the law in a way that Congress did not.
Logan struck me as a relatively easy case and this result is not at all surprising. Indeed, what makes the case worth reading is mostly an effort to read between the lines for tougher cases on the horizon, ranging from Gall and Kimbrough, to harder ACCA cases to be argued in January, to the gun rights restriction debate that may surround the Second Amendment case.
Particularly for Gall and Kimbrough, the emphasis on statutory construction in Logan is notable. Though perhaps most significant is the fact that Justice Ginsburg's authorship likely means she is not the main author for the opinions in Gall and Kimbrough. (Same goes for CJ Roberts, who authored the other civil opinion issued today, although both cases decided today come from the Court's second sitting this Term, whereas Gall and Kimbrough came from the first.)
New JPI report on racial disparities in incarceration
At a time when race and sentencing policy are entering the national political debate (details here and here), the Justice Policy Institute has produced an important new report showing the pervasiveness of racial disparities in imprisonment. The new report, which is entitled "The Vortex: The Concentrated Racial Impact of Drug Imprisonment and the Characteristics of Punitive Counties," can be accessed at this webpage. That webpage also provides links to an Interactive Map with associated county fact sheets, and it also has this official press release concerning the report. Here are excerpts from the press release:
A new report released today by the Justice Policy Institute (JPI) finds that 97 percent of the nation's large-population counties imprisoned African Americans at a higher rate than whites. The report documents racial disparities in the use of prison for drug offenses in 193 of the 198 counties that reported to government entities.
“The Vortex: The Concentrated Racial Impact of Drug Imprisonment and the Characteristics of Punitive Counties,” found that counties with higher poverty rates, larger African-American populations and larger police or judicial budgets imprison people for drug offenses at higher rates than counties without these characteristics. These relationships were found to be independent of whether the county actually had a higher rate of crime. (The findings for the 198 counties.)...
“The exponential removal of people of color who have substance abuse problems from their communities and into prisons undermines and destabilizes neighborhoods-- it does not make them safer,” says Ethan Nadelmann, executive director of the Drug Policy Alliance. “Drug addiction doesn’t discriminate but our drug policies do.” The report is being released just days before the Drug Policy Alliance hosts its 2007 International Drug Policy Reform Conference in New Orleans, Louisiana.
I hope that this interesting and important report gets all the attention it deserves. I also hope that all the presidential candidates get asked hard questions based on this report. Notably, as detailed in prior posts here and here, earlier reports indicate that the state with the highest black-to-white incarceration ratio for all crimes is Iowa, so this is a very important issue in the state that gets to vote first during the early political season.
Some related posts on racial disparities in incarceration:
Some related on sentencing politics:
Should "lack of remorse" justify a higher sentence?
This piece from the Canadian Press provides the latest news in the run-up to next week's sentencing of Conrad Black. Here are some details:
Conrad Black's lack of remorse following his conviction for fraud and obstruction of justice should be factored into next week's sentencing and possibly result in a harsher punishment, U.S. prosecutors said. "To this day, Black maintains his offences of conviction were 'rubbish' and 'nonsense,' and that the criminal justice system is 'essentially a substitute for a wealth-redistribution policy,"' lead prosecutor Eric Sussman said in a court filing late Monday....
Prosecutors said the judge should consider specific comments made in Men's Vogue and BBC Radio - where just last week Black said spending any time behind bars would "compound the injustice" of his criminal trial....
James Morton, president of the Ontario Bar Association, said he believed Judge Amy St. Eve "will be too smart to get really annoyed" on Black's comments, but cautioned making such statements "doesn't sing well."
Most participants and observers of sentencing realities will say that true remorse generally should, and typically will, mitigate an offender's punishment. But there is more debate over whether a distinct lack of remorse ought to be an aggravating sentencing factor.
Also lurking in the Black sentencing are interesting post-Booker ex post facto issues. The Seventh Circuit has held that, after Booker, courts should apply the most recent guidelines, but Black's lawyers seems to be fighting the application of harsher guidelines that post-date his criminal activity.
The severity of felony murder responsibility
In today's New York Times, Adam Liptak has this article entitled, "Serving Life for Providing Car to Killers." Here are a few excerpts:
The felony murder rule, which has many variations, generally broadens murder liability for participants in violent felonies in two ways. An unintended killing during a felony is considered murder under the rule....
India and other common law countries have followed England in abolishing the doctrine. In 1990, the Canadian Supreme Court did away with felony murder liability for accomplices, saying it violated “the principle that punishment must be proportionate to the moral blameworthiness of the offender.” Countries outside the common law tradition agree. “The view in Europe,” said James Q. Whitman, a professor of comparative law at Yale, “is that we hold people responsible for their own acts and not the acts of others.”
But prosecutors and victims’ rights groups in the United States say that punishing accomplices as though they had been the actual killers is perfectly appropriate.... Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation, a victims’ rights group, said “all perpetrators of the underlying felony, not just the one who pulls the trigger” should be held accountable for murder.
December 3, 2007
Weldon Angelos files 2255 motion
Regular readers will recall the name Weldon Angelos; Angelos faced a mandatory minimum sentencing term of 55 years following three small hand-to-hand marijuana sales. Some months ago, Weldon's sister asked if I would help with his 2255 motion. Aided by a great legal team working pro bono, this motion was completed and filed in federal district court today. The full 50-page motion, which makes an array of constitutional arguments, can be downloaded here:
Because I am essentially counsel of record, I do not plan to discuss or debate the merits of the motion on this blog. But I cannot help but use this forum to try to solicit amici support. Persons concerned with any number of criminal justice issues — ranging from extreme mandatory minimum sentences, prosecutorial charging and bargaining practices, convictions based solely on informant testimony, the reach of the Second, Fifth, Sixth and Eighth Amendments and principles of equal justice — should find the Angelos case interesting and perhaps worthy of some "friendly" brief writing.
UPDATE: The Salt Lake Tribune reports on the filing in this article.
Seeking to clear up Clintonian confusion on crack retroactivity
In the wake of crack retroactivity discussion by the Democratic presidential candidates, the ACLU has issued this new press release to "correct misconceptions about retroactivity." Here are excerpts:
- All offenders would first have to go before a court to have their case reviewed and argue that they are fit to be freed. People would not automatically be released from prison. Offenders who qualify for release under the new guidelines would have to appear before a judge, who would make the decision as to whether the person should be released from prison.
The following can be attributed to ACLU Legislative Counsel Jesselyn McCurdy: "The USSC changed the crack cocaine sentencing guidelines last month because the commission realized they were unfair. It makes no sense to call a law unjust and in the same breath say it should still apply. Retroactivity doesn’t mean prisoners will be released en masse; it means the mistakes in sentencing that have gone unchecked for decades will be corrected. Prisoners arrested for federal crack cocaine offenses who have served their time should serve only their time."
Though the press release does not fully explain who may be responsible for "misconceptions about retroactivity," it is obvious that Hillary Clinton is the chief culprit. As previously discussed here, Clinton this past weekend echoed comments by President Bush's Justice Department (noted here) and Republican members of the House Judiciary Committee (noted here) when indicating she is against retroactive application of the USSC's new crack guidelines.
I am pleased to see the ACLU trying to make sure facts and not fear drive this important sentencing reform discussion. I hope other sentencing reform groups like FAMM and The Sentencing Project will follow suit.
SCOTUS to finally issue opinions on Tuesday....
but my big question is whether Gall and Kimbrough are among those coming. This post at SCOTUSblog provides the basics of what we know tonight:
According to the Court's official opinion line, tomorrow will see the release of one or more decisions from the Supreme Court. If, as is widely expected, at least one of the decisions is a signed opinion disposing of an argued case, it will be the Court’s first this term... [W]hen the first signed opinion is released this term, it will be latest first opinion from an argued case since OT84, when Warren Burger was Chief Justice.
I doubt Chief Justice Roberts is eager to be following the administrative model set by CJ Burger, but all will be forgiven in my eyes if Gall and Kimbrough come soon and are effective opinions.
Latest, greatest, post-Rita sentencing statistics
I am pleased to see on the US Sentencing Commission's Booker webpage that the USSC has released its latest quarterly data analysis. Here is the current description with a link:
FY2007 4th Quarterly Sentencing Update: An extensive set of tables and charts presenting cumulative quarterly data on cases sentenced in fiscal year 2007. The numbers are prepared using data sentenced by close-of-business on June 30, 2007 and received, coded, and edited by the Commission by November 28, 2007.
(I believe the June 30 reference is a typo, because the underlying data report runs through Sept. 30, 2007.)
This latest data run is interesting in part because the latest quarter reflects the post-Rita universe in the district courts. Rita was decided on June 21, 2007 and so all the sentencings in the period from July 1 to Sept. 30 were handed down after Rita. It is also interesting because this last quarter also reflects a period in which the USSC's lowered crack guidelines were still just proposals (not to become effective until November 1, 2007.)
Though most of the data presented in this latest data run are cumulative data for the full fiscal year, Figures A and B seem to reveal that the number of within-guideline sentences went UP after Rita. However, set in a broader context, the data spotlight (a) the remarkable stability to be found in the post-Booker federal system, and (b) that changes by the US Sentencing Commission to particular guidelines may have the greatest predictable impact on sentencing outcomes.
Needless to say, as my recent article suggests in its title, Rita, Reasoned Sentencing, and Resistance to Change, I am not surprised than not much has changed since Rita.
Eighth Circuit issues ruling in faith-based prison appeal
The Eighth Circuit today released its long-awaited opinion in Americans United v. Prison Fellowship U.S. Court of Appeals Case, No. 06-2741 (8th Cir. Dec. 3, 2007) (available here), which addresses a variety of issues surrounding the operation of a faith-based prison program. Here from the Eighth Circuit's wensite is the unofficial summary of the ruling (from a panel that included semi-retired Justice O'Connor sitting by designation):
In action by inmates, taxpayers, inmate relatives and Americans United for Separation of Church and State alleging prison officials decision to pay the non-sectarian expenses of a values-based pre-release program violated the Establishment Clause of the First Amendment, the inmates, the taxpayer and Americans United had standing to challenge the program, while contributors to the inmates' telephone accounts did not; matter was not moot; defendants Prison Fellowship and InnerChange were state actors for Section 1983 purposes; because the indoctrination and definition criteria indicate InnerChange had the effect of advancing or endorsing religion, the state's direct aid to InnerChange during the years 2000 to 2004 violated the Establishment clauses of the U.S. and Iowa Constitutions; the district court did not err in finding that the per diem structure used for the program from 2005 to 2007 also violated the Establishment clauses of the U.S. and Iowa Constitutions; standard established in Turner v. Safely, 482 U.S. 78 (1987) that regulation which impinges on inmates' constitutional rights is valid if reasonably related to valid penological interests cannot be used to validate funding violations of the Establishment Clause; district court erred in ordering defendants to return funds received under the programs; provisions of the injunction concerning further funding of the program were not overbroad and did not forever ban the defendants from operating in Iowa.
Sex offenders the focus of a new technocorrection innovation
Today NPR's Morning Edition had this extended segment on the latest technocorrections innovation that, perhaps unsurprisingly, is focused on helping to track sex offenders. The story is entitled "Iris Scanning Tracks Sex Offenders," and here is the summary:
Law enforcement officials are tracking sex offenders with a new biometric tool: iris scanning. Jurisdictions in seven states are experimenting with technology that takes a picture of an offender's iris, stores it in a national database, and can be used to identify those who fail to re-register whenever they move from their home community.
Like all good pieces on technocorrections, the audio segment begins with an extended sci-fi movie reference.
SCOTUS to focus again on race and the death penalty
Though the Baze lethal injection case is the most consequential death penalty case coming before the Supreme Court this term, the Snyder case to be argued before the Justices tomorrow is sure to generate a lot of buzz about racial realities in the application of capital punishment. Helpfully, this article today's Los Angeles Times gets the discussion off to a rousing start. The article is headlined, "Jury under justices' scrutiny; The Supreme Court will hear a Louisiana case in which a black man was sentenced to die after all blacks were kept off the panel." But the start of the story reveals that it is really a prosecutor coming under scrutiny in Snyder:
Jim Williams had a reputation as a highly skilled, tenacious prosecutor -- maybe even a little bloodthirsty. After scoring convictions in dozens of murder cases, he told a reporter: "It got to the point where there was no thrill for me unless there was a chance for the death penalty."
In the mid-'90s, Williams posed for Esquire magazine standing behind a miniature electric chair with mug shots of five African American men he sent to death row. Since then, two of the defendants have been exonerated, two had their sentences commuted to life because of misconduct by Williams, and the fifth won a retrial after an appeals court overturned the verdict.
On Tuesday, the Supreme Court is to review another case in which Williams obtained a death sentence against a black man. The key question is whether Williams violated Allen Snyder's constitutional rights by removing all the potential black jurors at the start of his 1996 trial.
The Supreme Court's decision is expected to affect not only whether death-row inmate Snyder lives or dies but also how courts around the country weigh claims of unlawful racial discrimination during jury selection. At the end of the trial, Williams exhorted the all-white jury to give Snyder a death sentence because the case was "very, very similar" to the "most famous murder case" just a year earlier, in which former football star O.J. Simpson "got away with it."
For those interested in more background on the appellate particulars in Snyder v. Louisiana (06-10119), the folks doing SCOTUSwiki have this extended entry on the case.
Former border agents Ramos and Compean having appeal heard today
As highlighted in media coverage linked here by How Appealing, a Fifth Circuit panel will hear today the appeal of former U.S. Border Patrol agents Ignacio Ramos and Jose Compean, who were sentenced to terms of 11 and 12 years of imprisonment for shooting an illegal alien drug smuggler. As detailed in a series of prior posts, this case has generated lots of political controversy and the severity of the sentences are part of the reason for the case garnering so much attention. I do not think the appeal is focused on the sentencing terms, but prominent Senators from both parties (Diane Feinstein and Jon Cornyn) have already formally requested that President Bush commute the sentences of Ramos and Compean.
Some prior posts about the Border Agents case:
December 2, 2007
A quarter century of (T)executions
The Fort Worth Star-Telegram has this article marking a notable date in the history of Texas justice. The piece is entitled "Texas reaches milestone: 25 years, 405 execution," and the paper has these additional companion pieces: an item headlined "Questions, answers about the death penalty"; an editorial entitled "The long green mile of the death penalty"; and an op-ed entitled "The first to die by injection." Thanks to this post at Grits, I see that the Texas Prison Museum in Huntsville is having an event to mark this deadly anniversary.
Disappointingly, but not surprisingly, none of this coverage explores the economic costs to Texas taxpayers for the state's capital punishment system. Notably, a 2005 study indicated that the State of New Jersey spent more than $250 million on capital punishment since it was reinstated in that state. Given the much larger number of capital prosecutions (but also likely a much smaller per case cost), it seems fair to estimate that Texas taxpayers have spent more than $1 billion on the state's capital justice system.
Thanks to How Appealing for the links to these pieces and lots of other death penalty stories.
A retroactive litmus test on leading Democratic candidates
anIf this blog post from The Atlantic Online is accurate, it confirms my deep concerns about how Hillary Clinton would approach crime and punishment issues as president. The post is titled "Clinton, Obama, Edwards Differ On Retroactivity," and it reports that "Clinton opposes [retroactivity of the USSC's new crack amendments], and Edwards and Obama support it."
So, assuming this is accurate, let's review the line-up: the prominent opponents to retroactivity for the new USSC guidelines are President Bush's Justice Department (noted here), Republican members of the House Judiciary Committee (noted here), and now Senator Hillary Clinton.
As I have detailed in prior posts (some of which are linked below), I have long been troubled by the Clinton "brand" when it comes to criminal sentencing issues. But, of course, most of the troublesome record on these issues involved decisions by Hillary's husband. Now, assuming this blog report is accurate, we have a very strong basis to believe that Hillary herself favors tough-on-crime rhetoric over sound sentencing policy. Now who should be accused of taking a page out of the Republican play book?
Some recent posts on crack guideline retroactivity issues:
- USSC analysis on potential crack amendment retroactivity impact
- Thoughtful review of crack amendment retroactivity debate
- Latest FSR issue covers crack sentencing
Some recent posts on sentencing politics in the 2008 campaign:
UPDATE: I now see that this item at Politico has more on this story. Here are some telling details:
Clinton, who said she supports a federal recommendation for shorter sentences for some people caught with crack cocaine, opposed making those shorter sentences retroactive — which could eventually result in the early release of 20,000 people convicted on drug charges. "In principle I have problems with retroactivity," she said. "It's something a lot of communities will be concerned about as well."
In an interview after the debate, Clinton's pollster, Mark Penn, pointed out that the Republican front-runner has already signaled that he will attack Democrats on releasing people convicted of drug crimes.
Her five rivals present on stage — Illinois Sen. Barack Obama, Connecticut Sen. Chris Dodd, former North Carolina Sen. John Edwards, New Mexico Gov. Bill Richardson, and Ohio Rep. Dennis Kucinich — all said they favor making the shorter sentences retroactive.
"Rudy Giuliani is already going after the issue," Penn said. "He's already starting to attack Democrats, claiming it will release 20,000 convicted drug dealers."
So, besides suggesting that Hillary Clinton gets her crime and punishment ideas from the Giuliani campaign, this issue ought to help Democratic primary voters who care about principled sentencing reform know that not all the candidates are the same. (I am now wondering if keep prison populations growing is part of Hillary's universal health-care plan.)
MORE: I am pleased to see TalkLeft picking up this story, calling Clinton's position "a huge disappointment." I also see MyDD has this post saying that "Hillary's position is really astonishing." I hope other prominent political bloggers will keep on this important issue which provides, at least for me, a great litmus test on true principle versus (mis-perceived) political pragmatism.
New attitudes about juvenile crime and punishment
This long piece from the AP, headlined "States rethink charging kids as adults," provides a detailed examination of new views on juve crime and punishment. Here is how it starts:
A generation after America decided to get tough on kids who commit crimes — sometimes locking them up for life — the tide may be turning. States are rethinking and, in some cases, retooling juvenile sentencing laws.
They're responding to new research on the adolescent brain, and studies that indicate teens sent to adult court end up worse off than those who are not: They get in trouble more often, they do it faster and the offenses are more serious. "It's really the trifecta of bad criminal justice policy," says Shay Bilchik, a former Florida prosecutor who heads the Center for Juvenile Justice Reform at Georgetown University. "People didn't know that at the time the changes were made. Now we do, and we have to learn from it."
Similarly, this article highlights a new study from the U.S. Centers for Disease Control that indicates that "youths who have been previously tried as adults are 34 percent more likely to commit crimes than those who are dealt with in the juvenile system." The CDC study also shows that "youths transferred into the adult system commit suicide at higher rates than those kept in the juvenile system and are victimized by other inmates far more as well."
This important CDC study, which can be accesed here, is entitled "Effects on Violence of Laws and Policies Facilitating the Transfer of Youth from the Juvenile to the Adult Justice System: A Report on Recommendations of the Task Force on Community Preventive Services."