March 8, 2008
More criticism of sex offender residency restrictions
Providing another interesting perspective on sex offender residency restrictions is this new piece on SSRN from Asmara Johnson, titled "In the Zone: Sex Offenders and the Ten Percent Solutions." Here is the abstract:
This Article challenges prevailing judicial orthodoxy that many sex offender residency restrictions are constitutional under the federal Ex Post Facto Clause. The paper applies the analytical framework in Smith v. Doe, the Court's most recent case involving sex offender legislation. It also forges a new way of thinking about these regimes as land-use policies that "negatively" zone individuals out of the urban cores. The paper proposes an innovative "positive" zoning scheme, the Sex Offender Containment Zone, that zones high-risk convicted sex offenders back into the city and that is effective, humane, and constitutional.
At first glance, sex offender residency restrictions appear plausible because they ostensibly place a convicted sex offender's residence out of reach of children. However, these regimes address less than 10% of the very real problem of child sex abuse, as over 90% of this abuse is committed by a family member or acquaintance of the child. On the other hand, many schemes effectively banish almost 100% of convicted sex offenders to society's literal and psychic margins, condemning many low-risk offenders who pose minimal recidivist risk to a lifetime of isolation and breeding optimal conditions for high-risk offenders to re-offend. The practical implications of this policy choice, therefore, are dangerous and real, lulling the public into a veritable false sense of security.
Some related posts:
Shaming a child and the wisdom(?) of parental punishment
As detailed in this local Florida story, headlined "Teen Forced To Carry 'I Am Stupid' Sign After Speeding Ticket," a mother recently made headlines by imposing a shaming punishment on her reckless son. Here are the basic details:
Adam Clark was pulled over going 107 mph in a 55-mph zone; neither the police nor his mother were pleased. Adam's mother, Heidi Wisniewski, not only took his car away, but also made him a sign to show outside of his school every morning and every afternoon.
He was forced to hold a sign reading, "I was stupid. I drove over 100 mph and got caught. Thank God! I could have killed me and my friends." Adam said he got some strange looks and laughs from classmates at Orlando's Merritt Island High School, but said he accepts his punishment. Despite the humiliation, he said he isn't mad at his mother....
Wisniewski said her son would be in front of the school before and after school for a month, and added that she didn't think the punishment is over the line. "I love my son very much," she said. "I think more parents need to be tougher on their children."...
Adam said the punishment worked. "I've learned my lesson," Adam said.
As a fan of shaming punishments, I am quite pleased to hear about a mother willing to impose a (quite effective) type of punishment that the criminal justice system is often unwilling to impose.
Of course, I know that many (like Dan Markel) are adamantly opposed to shaming punishments. I wonder if Dan or others consider the mother in this story to be unfit because she imposed a severe shaming punishment. Or do those who oppose state-sponsored shaming punishments believe that parents can justifiably use these punishment even though the state should not? If this is the view of anti-shaming advocates, are they fundamentally asserting that the state should never consider taking on a parental-type role in the operation of a criminal justice system?
Cross-posted at PrawfsBlawg
March 7, 2008
Another strong editorial on mass incarceration
The Newark Star-Ledger has this editorial expressing concerns with the practicalities and politics of modern mass incarceration. Here is how it starts:
For the first time in history, more than one in every 100 adults in the nation is in jail or prison, giving the U.S. the grim distinction of leading the world in incarcerating its people.
Alarming is the only way to describe the numbers. At the start of 2008, a record-breaking 2.31 million U.S. residents were behind bars. No other nation — not China, not Iran, not Russia — has so many prisoners either in sheer numbers or per capita. Even as the crime rate has gone down, the prison population has gone up.
Though the number of offenders decreased slightly last year in New Jersey, the state stands out because it leads the nation in locking up nonviolent drug offenders. Most frightening about these numbers is the failure of politicians to seriously consider the wisdom of mandatory sentencing laws and other policies that have got ten New Jersey and so many other states into this fix. Reflexively, politicians support legislation because they want to be tough on crime even if the result is sending a lot of people to prison who should not be there.
Gov. Jon Corzine, who claims to be sensitive to these issues, nevertheless has signed more bills imposing mandatory sentences in two years than any governor be fore in such a short period.
Some recent related posts:
Might the ugly Clinton pardons start getting some campaign traction?
As I have noted previously, P.S. Ruckman over at Pardon Power is doing a great job keeping track of how the Bill Clinton's ugly clemency record could be a big issue in Senator Clinton's presidential campaign. Here are some notable recent posts on this topic:
- Campaign 08: Pardons for Clinton Library Money?
- Campaign 08: Pardon the Vetting, Mrs. Clinton
- Comment: Defending FALN Pardons?!
The first post linked above discusses this new USA Today article, headlined "Archivists block release of Clinton papers." Here are excerpts from this lengthy article:
Federal archivists at the Clinton Presidential Library are blocking the release of hundreds of pages of White House papers on pardons that the former president approved, including clemency for fugitive commodities trader Marc Rich. The archivists' decision, based on guidance provided by Bill Clinton that restricts the disclosure of advice he received from aides, prevents public scrutiny of documents that would shed light on how he decided which pardons to approve from among hundreds of requests....
The decision to withhold the records could provide fodder for critics who say that the former president and his wife, Sen. Hillary Rodham Clinton, now seeking the Democratic presidential nomination, have been unwilling to fully release documents to public scrutiny. Officials with the presidential campaign of Sen. Barack Obama, D-Ill., criticized Hillary Clinton this week for not doing more to see that records from her husband's administration are made public....
In January 2006, USA TODAY requested documents about the pardons under the Freedom of Information Act (FOIA). The library made 4,000 pages available this week. However, 1,500 pages were either partially redacted or withheld entirely, including 300 pages covering internal White House communications on pardon decisions, such as memos to and from the president, and reports on which pardon requests the Justice Department opposed....
Former president Clinton issued 140 pardons on his last day in office, including several to controversial figures, such as commodities trader Rich, then a fugitive on tax evasion charges. Rich's ex-wife, Denise, contributed $2,000 in 1999 to Hillary Clinton's Senate campaign; $5,000 to a related political action committee; and $450,000 to a fund set up to build the Clinton library.
The president also pardoned two men who each paid Sen. Clinton's brother, Hugh Rodham, about $200,000 to lobby the White House for pardons — one for a drug conviction and one for mail fraud and perjury convictions, according to a 2002 report by the House committee on government reform.
A killer conference at Fordham
Staring this morning is this conference in New York on lethal injection sponsored by the Fordham Urban Law Journal. I have the honor to be monitoring a panel on saturday morning, and here is a preview of topics to be covered:
The symposium will address a broad range of issues concerning lethal injection. Some of these issues include: The purpose of punishment and whether lethal injection adequately serves that purpose; the role of doctors in executions; the relationship between state laws governing the euthanasia of animals and the current lethal injection protocols in those states; the role of the Eighth Amendment in addressing these issues; the impact of the recent lethal injection litigation on lawyers, judges, media and the public, and the impact of the litigation on the death penalty debate as a whole.
One of the conference participants is Ty Alper, who has this effective new piece in the Harvard Law and Policy Review titled "What Do Lawyers Know About Lethal Injection?". It concludes this way:
Putting the state’s litigators in charge of a process to address the constitutional infirmities of that state’s lethal injection procedures is not a recipe for good public policy. Nor does it allow for an appropriate level of public scrutiny of what should be a fully transparent process.
March 6, 2008
Are sex offender registries effective?
A new paper available here via SSRN asks "Do Sex Offender Registration and Notification Laws Affect Criminal Behavior?". The piece is authored by J.J. Prescott and Jonah Rockoff, and here is their abstract:
In recent decades, sex offenders have been the targets of some of the most far-reaching and novel crime legislation in the U.S. Two key innovations have been registration and notification laws which, respectively, require that convicted sex offenders provide valid contact information to law enforcement authorities, and that information on sex offenders be made public. Using detailed information on the timing and scope of changes in state law, we study how registration and notification affect the frequency of sex offenses and the incidence of offenses across victims, and check for any change in police response to reported crimes.
We find evidence that registration reduces the frequency of sex offenses by providing law enforcement with information on local sex offenders. As we predict from a simple model of criminal behavior, this decrease in crime is concentrated among local victims (e.g., friends, acquaintances, neighbors), while there is little evidence of a decrease in crimes against strangers. We also find evidence that community notification deters crime, but in a way unanticipated by legislators. Our results correspond with a model in which community notification deters first-time sex offenses, but increases recidivism by registered offenders due to a change in the relative utility of legal and illegal behavior. This finding is consistent with work by criminologists suggesting that notification may increase recidivism by imposing social and financial costs on registered sex offenders and making non-criminal activity relatively less attractive. We regard this latter finding as potentially important, given that the purpose of community notification is to reduce recidivism.
"One nation, behind bars"
The Detroit Free Press has this potent editorial with this same title as this post. Here are excerpts:
The U.S. prison population, the world's largest, has grown nearly eightfold over the past 35 years and now costs taxpayers at least $60 billion a year. An eye-popping report released last week by the Pew Center on the States found that, for the first time, more than one in every 100 American adults is in jail or prison. And that figure doesn't count the hundreds of thousands of people who are on probation and parole.
What is the goal here? Is there a smarter way to get there? What are we as a society getting in return for all this money? What is this massive and growing penal system accomplishing? Before the nation hits two in 100 behind bars, which seems inevitable, it's time for a national debate on corrections and criminal justice policies that will lead to a more rational, humane and cost-effective system.
The nation has gotten far too little for its enormous investment in locking people up. Violent crime rates are higher than they were more than three decades ago, when tough-on-crime policies, including mandatory sentencing laws, created a prison-building boom. States can no longer afford to divert so many resources from education, health care and other pressing needs....
Nor can the nation ignore the human costs of mass incarceration. Nearly half of the 2.3 million adults locked up are African Americans, who make up less than 13% of the U.S. population. A stunning one in nine black males between the ages of 20-34 is behind bars....
Unacceptably high incarceration rates tear at the nation's social fabric and take public money from education, health care, transportation and other vital needs. Nor have they significantly reduced crime. It's time to re-examine the policies that have made us the incarceration nation.
Regular readers know that I have been regularly calling upon the Presidential candidates and the media to get started on "a national debate on corrections and criminal justice policies that will lead to a more rational, humane and cost-effective system."
Needless to say, I am not surprised that Hillary Clinton has not started a healthy crime-and-punishment dialogue given that she and her husband have both played a major role in the modern Democratic Party's apparent affinity for an irrational, inhumane and ineffective set of corrections and criminal justice policies. But I am still hoping that supposed maverick John McCain or claimed change agent Barack Obama will start using their bully pulpits to help shake this country out of its very harmful incarceration addiction. Or maybe they, too, are taking to Incarcerex.
Let the sunshine in ... to SCOTUS and all other federal courts
I am extraordinarily pleased to see this news that today the "Senate Judiciary Committee today passed out a bill that would allow TV coverage of all federal courts." Here's more from Lawrence Hurley's interesting report:
The committee has approved similar bills on several occasions in recent years but the legislation, known as the Sunshine in the Courtroom Act, has never been close to becoming law.
Sen. Ben Cardin, D-Md., (pictured) narrowly failed in his attempt to exempt district courts. His amendment failed on a 9-9 tie.
Cardin had argued that while there is a need to show the inner workings of the appellate process, especially the Supreme Court, trials in district court are more problematic. That's because the media would not cover trials from gavel to gavel, he said.
But the bill's sponsors fought back, noting that the latest version of the legislation allows trial judges to exclude the cameras in certain instances, such as to protect witnesses and minors. Sen. John Cornyn, D-Texas, added that coverage of trials would help the American people understand that trials are a lot more complex - and less entertaining - than legal TV dramas make them appear. "I think it's important for them to see what happens," Cornyn said of the public.
A House version of the bill has already been approved by the judiciary committee.
Readers will not be surprised to learn that I think it is especially important to see what happens in district courts at sentencings. Indeed, I think all law professors should lobby hard in favor of this Act in order to have a terrific corpus of teaching materials in the form of courtroom video. I might even be able to develop a sentencing-only version of YouTube.
Exposing the (racist?) hypocrisy of Clintonian speeches without solutions
I am pleased to see this new piece at the Huffington Post, titled "Hillary, Bill and Obama on Crack," is trying to bring the Clintons to account for their disappointing and very telling pandering on federal sentencing issues. Here are the basics:
While Bill Clinton is apologizing for not having done more to reduce the disparity in sentencing for crack and powder cocaine that is in part responsible for putting one in nine young black men in prison, his wife opposes even the most modest attempt to fix the problem.
Hillary Clinton has come out against making retroactive the small change in sentencing guidelines that allows some people convicted under the overly harsh crack laws to have their sentences reviewed by a judge, and if they are found eligible, given early release. Most blacks affected will still serve more than a decade in prison for a nonviolent crime for which whites often escape incarceration entirely — but nevermind. Hillary has bought into fears that this means a sudden massive release of an army of Willie Hortons....
As her husband did before her, when it comes time to make a choice between something that can be used as a political tool against her or doing the right thing and explaining the complexity, Hillary chooses expedience.
It's great to hear that Bill regrets sacrificing the lives of IV drug users and their sexual partners and children to his fear of being demagogued on needle exchange and now to learn that he opposes his own policies on drug sentencing. But it sounds like Hillary will be saying the same things only after she leaves office if she wins it — when it means absolutely nothing.
Some related prior posts of mine on race, sentencing and the 2008 campaign:
ON CLINTONIAN PANDERING
ON RACE, CRIME AND THE 2008 CAMPAIGN
- Will sentencing issues surface in the Clinton-Obama battle for black votes?
- Race, class and criminal justice in campaign 2008
- Politics and the war on drugs
- Major conference on race and criminal justice
- Interesting new op-ed on crack sentencing and clemency
- Aren't extreme sentences and mass incarceration a "tired philosophy that trusts in government more than people"?
The costs of the death penalty in Maryland
The death penalty has cost Maryland taxpayers at least $186 million more in prosecuting and defending capital murder cases over two decades than would have been spent without the threat of execution, according to a study to be released today. In addition, because most death sentences in Maryland are overturned and eventually reduced to life without parole, state residents are often saddled with the high cost of a capital case and the bill for housing a convicted killer for life, the study found.
Paid for by the Baltimore-based Abell Foundation and prepared by the Urban Institute, a national, nonpartisan research organization in Washington, the study estimates that the cost of reaching a single death sentence costs the state an average of $3 million, which is $1.9 million more than a non-death penalty case costs, even after factoring in the long-term costs of incarcerating convicted killers not sentenced to death.
The report - the first to analyze the cost of capital punishment in Maryland - arrives as state lawmakers prepare to again debate repealing the death penalty. A hearing is scheduled for today in Annapolis on a Senate bill that would eliminate capital punishment as a sentencing option. A similar House bill is scheduled to be heard next week. "This is a compelling argument against the death penalty - the enormous costs to the state's taxpayers," said Rick Abbruzzese, a spokesman for Gov. Martin O'Malley, a death penalty opponent who focused on the financial costs of capital punishment when he testified last year in support of repeal. The bill was defeated by one vote in a Senate committee last year.
The top prosecutor in Baltimore County - which accounts for more capital cases than any other jurisdiction in the state - assailed the study's conclusions and its use of attorneys' salaries to calculate the cost of the death penalty in Maryland. "That is a completely worthless number, because we don't go out and hire new lawyers to try these cases," Baltimore County State's Attorney Scott D. Shellenberger said. "They get assigned to my most experienced lawyers, who will work as many hours as it takes to put the case on, and don't get any more money."
Some related posts:
This morning's crack sentencing coverage
Another day and another set of newspaper articles and commentaries on crack retroactivity. Here's a sample:
- From Chicago Tribune here, "Crack cocaine prison terms may be eased"
- From the Louisville Courier-Journal here, "New rule may cut jail time for 300 Ky. inmates"
- From San Francisco Chronicle here, "Drug laws' absence of justice"
- From the Washington Times here, "Review with caution"
March 6, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack
March 5, 2008
A new note on sex offender residency restrictions
Thanks to this post at CO, I see a new note on sex offender residency restrictions from the Northwestern University Law Review. This piece — Sarah E. Agudo, Irregular Passion: The Unconstitutionality and Inefficacy of Sex Offender Residency Laws, 102 Nw. U. L. Rev. 307 (2008) (available here) — has these passages in its introduction:
Sex offenders are among the most hated members of our society.... In recent years, laws protecting society from these offenders have grown increasingly broad; the restrictions have become more severe and applicable to more people. Residency laws, which dictate where sex offenders can live upon release from prison or while on parole, exemplify this trend. Twenty-two states in the United States currently have some form of residency law that restricts where sex offenders can live. For example, many states prohibit sex offenders from living within 1000–2500 feet of schools, bus stops, or daycare centers....
It is likely that these recent expansions of sex offender legislation and the ensuing litigation over their constitutionality will prompt a Supreme Court decision establishing the limit on states’ control over their released offenders.
Research on the effectiveness of residency laws is scarce. However, a few studies suggest that residency restrictions have no impact on sex offense recidivism.... Protecting the public from sex offenders is unquestionably important, but states should not sacrifice civil liberties in favor of unproven methods of control. Reasonable and constitutionally acceptable residency laws may well exist.
The aim of this Comment is not to call for the abolition of all residency laws, but rather to promote a cogent dialogue regarding the upper bounds of their effectiveness and constitutionality in order to provide a framework for future legislation. Although, in many areas of law, democratic processes can adequately safeguard those bounds, the public outrage against sex offenders threatens to chill the usual political protections and justifies careful judicial oversight.
Some related posts:
Eighth Circuit affirms large above-guideline sentence
The Eighth Circuit today in US v. Austad, No. 07-1376 (8th Cir. Mar. 5, 2008) (available here), affirms an above-guideline sentence with heavy reliance on Gall. Here is the start and end:
Christopher Austad (Austad) pled guilty to mailing threatening communications in violation of 18 U.S.C. § 876(c). After calculating a sentencing Guidelines range of 37 to 46 months imprisonment, the district court sentenced Austad to 84 months imprisonment. Austad appeals, arguing the sentence is unreasonable, and that the district court failed to consider Austad’s history and circumstances. We affirm....
As the Supreme Court reminds us [in Gall], “[t]he sentencing judge is in a superior position to find facts and judge their import under § 3553(a) in the individual case. The judge sees and hears the evidence, makes credibility determinations, has full knowledge of the facts and gains insights not conveyed by the record.” id. (citation omitted). Given these considerations, we cannot say the district court abused its discretion in sentencing Austad. Even if Austad’s sentence were considered “unusually harsh,” the district court explained the sentence with “sufficient justifications.” See id. at 594.
Early reports on crack retroactivity implementation
This new Washington Post article — headlined "Government Starts Cutting Sentences Of Crack Inmates: Bureau of Prisons Processes 400 Orders" — provides news from the front lines in the implementation of the new crack guidelines. Here are the basics:
The federal government said yesterday that it has received hundreds of court orders reducing the prison sentences of crack cocaine offenders in the two days since new sentencing guidelines took effect. A spokeswoman for the Federal Bureau of Prisons could not say how many prisoners have already been released under the U.S. Sentencing Commission's new guidelines, but the bureau has processed about 400 orders modifying prison terms nationwide.
In addition, the New York Sun has this new piece, headlined "Judges Grant Release Of 3 City Crack Offenders."
On a slightly different but related front, The Huffington Post has this new commentary titled "Clinton's Crack Cocaine Apology: Too Little Too Late?".
UPDATE: Here are some more local stories about crack retroactivity implementation:
- From the News Virginian here, "Crack offenders vying for less prison time"
- From The Tennessean here, "New sentencing rules for crack-related crimes may free 10 prisoners"
March 5, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (8) | TrackBack
Tenth Circuit splits over reasonableness of below-guideline sentence
In a lengthy decision, a split Tenth Circuit panel upheld the reasonableness of a below-guideline sentence in a sex offense case in US v. Smart, No. 06-6120 (10th Cir. Mar. 4, 2008)(available here). Here is how the majority opinion starts:
Christopher Wayne Smart was convicted of inducing a minor to engage in sexually explicit conduct for the purpose of producing videotapes depicting such conduct in violation of 18 U.S.C. § 2251(a). Exercising its discretion under United States v. Booker, 543 U.S. 220 (2005), Smart’s sentencing court concluded that his United States Sentencing Guidelines (“Guidelines”) range of 168 to 210 months’ imprisonment overstated the seriousness of his offense, and varied downward, imposing a sentence of 120 months’ imprisonment. The government appeals.
We review this exercise of district court sentencing discretion under the recent Supreme Court holdings in Gall v. United States, 128 S. Ct. 586 (2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007), which substantially invalidate the rigorous form of review our circuit announced in United States v. Garcia-Lara, 499 F.3d 1133 (10th Cir. 2007). Applying a deferential abuse of discretion standard, we AFFIRM.
The extended dissent by Judge Hartz begins by asserting that "the majority opinion has mischaracterized the government’s arguments in this case and has misconceived the meanings of substantive and procedural error."
March 4, 2008
After 220 years, should the Second Amendment stay minimalist?
Larry Tribe has this op-ed today about the Heller Second Amendment case in the Wall Street Journal, headlined "Sanity and the Second Amendment: Individuals have a right to bear arms -- but not any arms, anywhere." I found the closing sentiments of the piece a bit curious:
Chief Justice John Roberts, ever since his days as a judge on the court of appeals, has virtually defined judicial modesty by opining that if it is not necessary for the court to decide an issue, then it is necessary for the court not to decide that issue. For this reason, and for the further reason that the scholarship on the reach of the Second Amendment and its implementation is still in its infancy, the court should take the smallest feasible step in resolving the case before it.
Issuing a narrow decision would disappoint partisans on both sides and leave many questions unresolved. But to do anything else would ill-suit a court that flies the flag of judicial restraint.
First, though Chief Justice Roberts has talked about "judicial modesty," my sense is that most court-watchers think he has not really pursued a "modest" judicial philosophy during his first few Terms on the Court. Is Tribe now validating the notion that the new Chief is in fact a paragon of "judicial modesty"?
Second, is "the scholarship on the reach of the Second Amendment and its implementation" really "still in its infancy"? If Tribe was discussing the Third Amendment, I would agree. But Second Amendment scholarship has been pretty robust in modern times, and this scholarship is certainly a lot more advanced than scholarship about the reach and implementation of the Fifth, Sixth and Eighth Amendments at sentencing.
Third, is it really a good idea to "leave many questions unresolved" in Heller? Such an approach likely achieves nothing except lots and lots of lower-court litigation and political grand-standing about gun rights. Is this really what we should hope the Supreme Court "achieves" through its ruling in Heller?
Fourth, do current court-watchers seriously think that the Roberts Court "flies the flag of judicial restraint"? Perhaps Tribe and others are hoping that the Roberts Court will run this flag up its flagpole, but I do not think too many of the current Justices have shown a real affinity for pledging allegiance to that flag.
Some related recent Second Amendment posts:
A must-read on the politics of sentencing on a big election day
Just before I head out to vote, I got an e-mail from Stephanos Bibas with this message: "Max Schanzenbach, Emerson Tiller, and I have just completed and submitted for publication the enclosed essay, entitled Policing Politics at Sentencing. We hope you'll post it to your blog and welcome comments." Not only will I happily post the essay below, but here is the abstract for ready reader consumption:
ABSTRACT: In the recent Booker, Rita, and Gall cases, the Supreme Court continued to loosen federal sentencing law without exploring the implications of broader trial-court sentencing discretion. Drawing on our previous work in positive political theory, this essay argues that binding sentencing guidelines are necessary to constrain trial-court discretion and permit meaningful appellate review. The Court has taken too rosy a view of trial-court sentencing discretion, undervaluing appellate review as a check on policy and ideological variations. Moreover, its case law discourages the transparency needed for appellate review and public scrutiny. Finally, this essay considers what guideline sentencing ought to look like if we could build it from scratch.
For a host of reasons, I suspect I may not agree with much of this piece, largely because I fear that the authors may have a far too rosy a view of "appellate review as a check on policy and ideological variations" in the actual operation of the federal sentencing system. Since the authors have requested comments, I'll here provide a quick two-point take on the basis for my concerns:
1. Well before Booker, much of the variation in sentencing outcomes resulted from the failure of appellate review to serve as a check on policy and ideological variations. Congress was forced to enact the Feeney Amendment largely because the (1) federal prosecutors and (2) federal circuits had taken such widely divergent views concerning the application and limits of departure authority when the guidelines were still mandatory.
2. If appellate review is so obviously a positive good to achieve the sentencing reform goals that Congress seeks and that justice demands, the frequent uses of appeal waivers in plea agreements by the Department of Justice — both before and after Booker — would be extremely suspect and should not be so consistently approved by the very appellate courts that this article champions. As detailed in this post from 2005, Nancy J. King and Michael O'Neill did some ground-breaking empirical work on appeal waivers in a piece entitled "Appeal Waivers and the Future of Sentencing Policy." They found that discretionary and disparate use of appeal waivers by prosecutors, and not greater district court discretion, might be the root of many federal sentencing problems. Disconcertingly, from a quick scan, I do not see any mention of appeal waivers or the King & O'Neill research in this new essay.
I hope to comment further after I read closely more than just the essay's abstract. In the meantime, I hope others might comment on the piece while I go wait in line in the rain to vote.
Two important (but unpublished!?!) defendant wins in the Eighth Circuit
I am not sure what bother me more: the fact that federal defendants rarely prevail in sentencing appeals or the fact that when they do some circuit seem eager to suggest these rulings are inconsequential by deciding they should be "unpublished." Two rulings from the Eighth Circuit today, as reported on its official opinion page, get more worked up on this topic today. Here are the unofficial summaries:
US v. McDonald, No. 05-1617 (8th Cir. Mar. 4, 2008) (available here):
[UNPUBLISHED] [Per Curiam - Before Bye, Beam and Gruender, Circuit Judges]: On remand from the Supreme Court for reconsideration under Gall v. U.S. Under the more deferential abuse-of- discretion review outlined in Gall, the district court did not abuse its discretion in sentencing defendant to 132 months, and the sentence is affirmed.
US v. Weston, No. 07-1048 (8th Cir. Mar. 4, 2008) (available here):
[UNPUBLISHED] [Per Curiam - Before Bye, Smith and Benton, Circuit Judges]: District court erred in applying the presumption of reasonableness; this error is now plain, and the record shows a reasonable probability that defendant would have received a lesser sentence but for the error; case remanded for resentencing.
Q: "Hey, lawyer, you've just figured out crack retroactivity, now what are ya going to do?"
A: "I'm going to DisneyWorld! ... But only after I attend this terrific the Seventeenth Annual National Seminar on the Federal Sentencing Guidelines, co-sponsored by the US Sentencing Commission and the Federal Bar Association, which is scheduled for May 21-23 in Walt Disney World, Orlando, Florida!"
All the particulars of this exciting event are set out in this event brochure, which highlights that the Seminar presents an opportunity to commune with the entire sentencing commission, many staff, key judges, prosecutors, professors and others still trying to sort through post-Booker realities. As detailed in the brochure, this Seminar brings together many folks who are really in-the-know about federal sentencing law and practice. (I have the honor to be part of a great panel on "Guideline Departures & Variances Outside the Range under § 3553(a)," though I expect I will learn more than I know to share about this still-challenging post-Booker topic.)
UK looking at a market-incentive approach to prison and prisoner reform
This new article from the Guardian reviews a fascinating set of UK developments that ought to intrigue any and all would-be US criminal justice reforms. The piece is headlined "Tories plan bonuses for prison governors who cut reoffending," and here are excerpts:
A ground-breaking "payment by results" scheme will turn most prisons into self-governing bodies that will win cash rewards — including bonuses for governors — if they cut reoffending rates among former inmates, David Cameron pledged yesterday.
In a shake-up of criminal justice policy, a future Conservative government would allow prisons to hire private companies or voluntary groups to steer inmates away from a return to crime — or risk a reduction in funds. Successful prisons, which prevent former inmates from reoffending for two years after their release, would be paid a "premium tariff payment" — a sum equivalent to the amount the state spends on processing an offender through the criminal justice system again. Prisons that failed to meet their targets would be denied the extra payments and would have to rely on the "basic tariff" paid to house each inmate.
Nick Herbert, the shadow justice secretary, said the system would cut reconviction rates by 20% and cost the taxpayer nothing because it would redirect £259m that would be spent on future offenders into the new programmes. The radical changes are the most eye-catching element of what Cameron dubbed a "rehabilitation revolution" to cut the high levels of reoffending. Sixty-five per cent of offenders are reconvicted within two years of being released from prison, helping to create what Cameron called the "crisis" in the prison system in England and Wales which has seen the prison population recently hit a record 82,180....
A 111-page Tory document on prisons said: "For the first time all institutions in the system — prisons, the probation service, public, private and voluntary agencies — will have one clear incentive: to stop individuals reoffending once they have left prison. If they are successful they will be able to earn money. If they are not, they will still receive payments to cover their costs." [Cameron] said: "For too long, Labour have refused to build the prison places that are needed. And for too long, they have allowed prisons simply to warehouse criminals rather than reforming them. The result is our chronic rate of reoffending."
This related article, headlined "Prisoners should make reparations to victims, says Cameron," includes some additional details on David Cameron's proposals: "The Conservative leader said that getting prisoners to make reparations to their victims would help to ensure that prisons were places where offenders could be rehabilitated."
The "Policy Green Paper" that lays out all these ideas goes by the catchy name "Prisons with a Purpose" and can be accessed here.
Research on capital punishment's impact on plea deals
Though the article itself is not available for free, this new posting on SSRN spotlights an issue that I have long thought critical to really understanding the death penalty's true impact on modern criminal justice systems. The article by Ilyana Kuziemko, which comes from a recent issue of the American Law and Economics Review, is titled "Does the Threat of the Death Penalty Affect Plea Bargaining in Murder Cases? Evidence from New York's 1995 Reinstatement of Capital Punishment." Here is the abstract:
This article investigates whether the death penalty encourages defendants charged with potentially capital crimes to plead guilty in exchange for lesser sentences. I exploit a natural experiment in New York State: the 1995 reinstatement of capital punishment, coupled with the public refusal of some prosecutors to pursue death sentences (N.Y. Penal Law § 125.25 [McKinney 1975]). Using individual-level data on all felony arrests in the state between 1985 and 1998, I find the death penalty leads defendants to accept plea bargains with harsher terms, but does not increase defendants' overall propensity to plead guilty. A differences-in-differences analysis of a national cross-section of homicide defendants confirms these results.
Some related posts:
Some of the newspaper coverage of now effective crack retroactivity
Though the USSC's official website still doesn't have any official notice that its new crack guidelines are now officially retroactive (background here), the traditional print media has lots of crack coverage. Here are just a few links:
- From the AP here, "Drug Sentencing Guidelines Take Effect"
- From the Richmond Times Dispatch here, "Crack offenders released early"
- From USA Today here, "Bill Clinton admits 'regret' on crack cocaine sentencing"
- From the Washington Times here, "Inmate releases begin under new guidelines"
March 4, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack
March 3, 2008
Still more concerns about juve LWOP
One of the most clear impacts of the Supreme Court's decision to make juveniles ineligible for the death penalty has been greater public policy and public attention given to juveniles sentenced to very long prison terms. The latest example of this attention comes in the form of this new Washington Post article, headlined "Illinois Weighs Second Chances: Some See Juvenile Sentencing Laws As Overly Harsh." Here is a snippet:
Illinois's mandatory life sentence law, with its tough provision for people whose role in a crime may have been small, was passed in the late 1970s at a time of concern over rising youth crime rates. Now, however, it is now being challenged.
A coalition of human rights groups, defense lawyers and lawmakers is backing legislation to do away with mandatory life sentences for juveniles and to reconsider the cases of those who were sentenced as juveniles and are serving now....
In Illinois as in other states, the combination of mandatory transfers to adult court and mandatory life sentences for certain crimes means a teenager could end up with a life sentence for serving as an unarmed, perhaps unwitting, accomplice -- a lookout or driver -- during a murder. State Rep. Robert Molaro (D-Chicago) has introduced legislation that would end life sentences without parole for juveniles. Colorado banned such sentences in 2006, and similar legislation has been introduced in Nebraska, Florida, Michigan and California.
Israel is the only other country that sentences juveniles to life without parole. It has seven in detention, compared with more than 2,300 in the United States, according to a report by a coalition led by Northwestern University Law School's Children and Family Justice Center and the John Howard Association.
Some recent related posts on juve life sentences:
Justices take another long break without resolving Baze
Lawyers and judges in state and lower federal courts in regions with active capital punishment systems are accustomed to speedy appellate litigation in which complicated death penalty issues must be resolved sometimes in a matter of days or hours because of a looming execution date. I suspect some of these lawyers and judges will join me in being disappointed and concerned with how long the Supreme Court is taking with the Baze lethal injection case.
We are now approaching six months since the Justices took up the Baze case in September, and it has been nearly two full months since the Court heard oral arguments in Baze. In my view, neither the legal or factual issues in Baze are that complicated. Moreover, the Justices have had the benefit of two recent ruling in this area (Hill and Nelson), and also the benefit of lots of lower court and amici input.
If Chief Justice Roberts was genuinely committed to having the Justices act more like a court and less like law professors, he would have made sure Baze was resolved quickly. Expedited action in this setting seems especially important if, as some suggest (here and here), that the SCOTUS moratorium on executions may be costing hundred or even thousands of innocent American lives because of diminished deterrence.
Joyfully, I do not think recent homicide data supports a claim that the SCOTUS moratorium on executions is costing lives. Nevertheless, I do think it is troublesome that the Justices have kept the modern death penalty in suspended animation as the Justices take their sweet time deciding an issue critically important to the future status of the American system of capital punishment. Perhaps Congress could and should pass a law preventing the Justices from going on any kind of book tour when important death penalty cases are pending.
This kvetchy post is primarily the result of the fact that, according to this post at SCOTUSblog, the Justices this morning resolved two complicated cases that were both argued after Baze. In addition, it appears that the Court now goes on hiatus for a few weeks, so that March 18 may be the next chance for an opinion in Baze (and I am not holding my breath we will see a ruling then). Maybe it is time to tweak Justice Jackson's famous quip about the Supreme Court to read: "We are not slow because we are infallible, but we are slow only because we are final."
Conrad Black gets a peek inside the American criminal justice system and does not like what he sees
Writing for New York Sun, Conrad Black has this remarkable op-ed entitled "My Faith in American Justice." Here are snippets:
It is a terrible thing to be falsely accused, and wrongly convicted, even of a fraction of the original charges, and unjustly incarcerated. For persisting in seeking the recognition of my innocence of these charges, I have been portrayed as defiant, or at least in denial. I defy and deny unjust charges, not the practical difficulties I have faced for the last four years and am facing now.
I would qualify in political terms as a reasonable member of the law-and-order section of the public. And as a conscientious and religious matter, I believe in the confession and repentance of misconduct, as well as in the punishment of crimes. If I had committed any of the offenses charged, I would have pleaded guilty and asked for a sentence that would enable me to atone for my crime and assuage my guilt and shame....
There was no evidence to support two of the remaining convictions, and the only evidence, from the chief cooperating witness, was exculpatory. For the third count, the evidence was an uncorroborated allegation of a non-incriminating telephone conversation, which did not, in fact, take place....
Some of the jurors, in post-trial comments, by e-mail and on television, where there can be no question of a journalist misunderstanding what was said, confirmed that there remained a reasonable doubt, but that a compromise was reached on acquittals and convictions, contrary to the judge's instruction. One of the jurors stated that it should have been a civil case....
This is the criminalization of what was and remains a civil factional corporate dispute. My faith in the United States has inspired me to persevere, despite what I believe has been the prosecution's insufficient respect for the Fifth, Sixth, and Eighth Amendment guarantees of due process, of the grand jury as an assurance against capricious prosecution, of no seizure of assets without just compensation, of speedy justice, access to counsel, and reasonable bail.
I have been besieged by various agencies of the U.S. government for over four years, and I know of only one higher bond in U.S. history than the $38 million I have been posting.
Thoreau wrote: "Under a government which imprisons unjustly, the true place for a just man is also in prison." These charges and the actions leading up to them have been unjust. Most of them have already been found to be unjust. I cherish my liberty as all people do, but I am unafraid. I have faith in American justice.
I admire Lord Black for retaining faith in the American justice system despite his travails and his apparent belief in his innocence. Candidly, I think his faith is badly misplaced. I would be quite surprised if a Seventh Circuit panel ends up reversing his convictions. And, even if it does, I would expect the Justice Department to seek en banc and/or cert review of any reversal.
Moreover, a reversal most likely could just result a new trial, not an exoneration. And, perhaps most critically, since Lord Black must report to federal prison today, he may end up serving most of his sentence before any of these legal particulars ever get resolved.
New lower USSC crack guidelines now officially retroactive
There has already been a lot of local and national action concerning the retroactive application of the lower US Sentencing Commission crack guidelines. But today (Monday, March 3, 2008) is the official effective date for the retroactive application of the new guidelines.
Though I suspect we will see lots and lots of news stories about the implementation of these new guidelines in the days and weeks ahead, I already see interesting local pieces from North Carolina and Florida on this issue. Also FAMM has this helpful press advisory. As I have suggested before, I think we can and should expect some crack March Madness as a host of complicated legal issues surrounding crack retroactivity get hashed out in lower courts.
Here is a recap of some of the most important/enduring posts I have covering crack retroactivity issues at the national and local levels:
- A retroactive litmus test on leading Democratic candidates
- Cracked history: How Hillary Clinton really "played the race card" and Sean Wilentz failed to notice
- House hearing on crack sentencing disparity
- Latest FSR issue covers crack sentencing
- More coverage of crack retroactivity realities
- Another story about the local implementation of the new crack guidelines
- The crack retroactivity story in my backyard
UPDATE: CNN.com has this new piece headlined "Some crack convicts could soon be set free." Disappointingly, I do not see anything new on the USSC's official website yet. Perhaps the USSC hopes everyone will get all the important details they need concerning what's happening on crack retroactivity from the media and bloggers.
March 3, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (4) | TrackBack
A fascinating new blog to watch
Fans of the thoughtful criminal justice writings of Professor Bill Stuntz will want to check out his new blog, Less Than The Least (which is co-authored by David Skeel). Here is the blog's notable introduction:
We are both law professors and evangelical Protestants — a weird combination in our time. We hope it’s also an interesting combination. We plan to write about the things that interest us, professionally and personally: crime and criminal justice (Stuntz), corporate governance, credit, and bankruptcy (Skeel), the culture wars, politics, literature and the arts, and other topics.
I always learn so much from Stuntz's articles, though I find most of them a bit too long. I am very excited to see him now working in a short-form medium. And this post connecting dots between Michelle Obama and mass incarceration highlights why I am sure I will be linking frequently to this new endeavor:
The last generation, the generation that saw the rise of legally protected civil rights for African Americans, also saw the rise of mass imprisonment of African Americans. Today, of every 100,000 white men, 471 sleep in prison beds — a record-high number, many times the comparable figure elsewhere in the Western world. Among black men, the analogous number is 3,145. (For the numbers, click here). Mass imprisonment is the defining fact of life in many black neighborhoods in the United States. It would hardly surprise if that fact shaped the attitudes black men and women have toward a country that imprisons so many of their fathers and sons, brothers and friends.
I’m a middle-aged white guy and a Republican to boot; I have no special insight here. But would it really be that surprising if a large fraction of black professionals look at our legal and political systems with a jaundiced eye, given the truly mind-boggling levels of black incarceration we’ve seen over the last twenty years? Something tells me there are an awful lot of people who, when they read or heard Michelle Obama’s words, thought: she read my mind.
"Are Liberals Responsible For Mass Incarceration?"
The title of my post here comes from this intriguing post by SHG over at the great blog Simple Justice: A New York Criminal Defense Blog. At that blog, SHG indicates that he "look(s) forward to lively and thoughtful discussion," and we engaged in just such a discussion when SHG took issue with my support here for a Kentucky forfeiture bill.
SHG kindly let me have the last word in our debate over asset forfeiture as an alternative punishment, in part because he rightly realized that I "took this discussion to a much deeper place." That, in turn, prompted SHG's long post with the title above. The full post should be read for context, but here's how it concludes:
What I found so jarring by Doug's position is that we share a concern for the over-incarceration, over-criminalization of American society. We similarly share a concern about the disparate impact of criminal law on minorities. There is much we agree on. Yet, it never occurred to me that beneath these areas of agreement, Doug harbored such a smoldering hatred of liberals. Indeed, but for a few odd choices, one might well have concluded that Doug was quite the liberal himself. And everybody is entitled to make some unexpected choices from time to time.
But Doug has come out clearly as a liberal-blaming conservative, and challenges us libs with being small-minded, unimaginative, brainwashed and beaten. I'm not buying, and I'm frankly shocked by the depth of Doug's hatred of liberals and the nature and scope of his attack.
Just because we agree on the problem does not mean that we have to accept any potential "solution" that comes along. By disagreeing with Doug's acceptance of asset forfeiture as a Utopian ideal, I am not prepared to accept being pigeonholed. Mass incarceration is a very real problem. Asset forfeiture is a very bad solution. We need to solve the problem, and Doug is right that we all need to open our minds to alternatives that fall outside the realm of the usual answers....
But in our zeal to find alternatives, seizing upon solutions that are worse than the problem is not progress. Legislatures tend to do that a lot, coming up with a brand new idea that ultimately proves to exacerbate the problem rather than fix it....
Doug has, in effect, accused me of liberal myopia because I do not accept his view that any alternative to mass incarceration is a good one. Since Doug's views don't reflect mainstream conservatism, it would be unfair to make any accusations against conservatives based upon Doug's comments. But I have one to levy directly at my accuser: Professor Douglas Berman, you are just a liberal in sheep's clothing who is grasping at straws to find a cure to the societal nightmare of over-incarceration. Stop fighting it and come over to the side of truth and justice. We will forgive you this one mistake.
Because he has addressed me directly, I want to clarify a few points:
1. I do not have a "smoldering hatred of liberals," but I do have a smoldering concern that Americans who vocally and aggressively oppose the death penalty, and shaming punishments, and property punishments, and other non-incarceration responses to crime fail to realize (while being eager to deny) that they bear at least some partial responsibility for contributing to the various social and political realities that have produced modern mass incarceration in the United States.
2. I am genuinely worry that most Americans (and not just "libs" as SGH describes himself) have become "small-minded, unimaginative, brainwashed and beaten" by a Kafkaesque US criminal justice system. I am not sure how else I can otherwise explain, e.g., why federal defendants are still regularly punished for acquitted conduct even four years after Blakely or why New Jersey gets hailed after eliminating a (dormant) death penalty for murderers while nobody pays attention to its extreme and racially skewed drug offense imprisonment realities.
3. I am proud to say that I am neither a "liberal in sheep's clothing" nor a sheep in liberal's clothing. Especially since working on this blog, I have concluded that political labels (as well as some clothing) tend to restrict critical thinking rather than inspire reasoned dialogue. And once I stopped worried about labels, I discovered that many so-called "conservatives" advocate ideas that have great sentencing reform potential — ideas ranging from support for faith-based prisons and reentry programs to a stated concern for doing away with any "tired philosophy [like the war on drugs] that trusts in government more than people."
4. I readily admit that I am "grasping at straws to find a cure to the societal nightmare of over-incarceration." I do so because so many others who focus on criminal justice systems — and especially those who proudly assert that they are on "the side of truth and justice" — have for decades been unable (or unwilling) to pursue effectively cures for over-incarceration (perhaps because they are so darn busy trying to end capital punishment or trying to prevent crime victims from having rights or trying to ensure accused terrorists at GTMO have habeas rights or trying to prevent the recognition of an individual right to keep arms).
In short, SHG, I am not sure — nor do I really care about — which "side" I am on in these debates. But I am sure that, as a believer in America's founding principles of liberty and freedom, I am deeply ashamed to be a citizen in the only country in world history that locks more than 1% of its adult population in small cages with iron bars. I am also ashamed that very few on any "side" of the political fence are complaining about the failure of our nation's leaders to address these critical issues.
March 2, 2008
Potent state sentencing op-ed from Arizona
This morning's Arizona Daily Star has this notable op-ed headlined "Sentencing laws are senseless." Here are snippets:
Gov. Janet Napolitano's 2008-2009 proposed budget includes almost $1 billion for the annual expense of maintaining our adult and juvenile prison system. The state is also receiving bids for the construction of facilities to create 3,000 additional prison beds to ease prison overcrowding. The standard construction cost is $110,000 and up per bed.
In the last 10 years the incarceration rate in the United States has far outpaced the rest of the world. We lock up people at five to eight times the rate of any other industrialized country. Arizona ranks with Mississippi, Louisiana and Texas as having one of the highest incarceration rates in the United States, including particularly high rates of incarceration for women and minorities....
If these mind-boggling amounts of money were buying us public safety, or even helping to support a more ordered society, they might be acceptable. The facts show otherwise:
- 49 percent of new prison admissions are for parole or probation violations.
- 55 percent of Arizona prisoners are serving time for non-violent offenses — DUI, drugs, theft, etc.
- Only 18 percent are in prison for offenses involving victim injuries. Many are serving time for automobile accidents criminalized by allegations of negligent or reckless behavior, frequently alcohol-related.
At the present time, Arizona has more than 2,000 inmates over 50 years old who will remain in custody well into their geriatric years, and many for life. These prisoners, well beyond their lawbreaking years, require special medical attention, expenses that must be borne by the taxpayers....
It's time the public and the politicians get the facts on how expensive and unfair our criminal-justice system is and submit all of it to the light of public examination.