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April 8, 2008

Should the NAACP and others really be concerned about the sentencing of the Barbie bandits?

A new sentencing story out of Atlanta, covered today by the AP and the Atlanta Journal-Constitution, seems very likely to become a topic of water-cooler dialogue.  Here are the basics from the AP:

The head of the Georgia NAACP called for the state to investigate the sentences given in the so-called "Barbie bandits" bank theft case, saying the two white defendants got less prison time than two black men.  Edward DuBose said Monday he will ask state Attorney General Thurbert Baker to look into the case. Baker's office did not immediately respond to a call seeking comment Tuesday.

Last month, Cobb County Superior Court Judge Mary Staley sentenced 20-year-old Heather Johnston to 10 years probation after she pleaded guilty to a charge of theft by taking in the 2007 heist. The judge gave 19-year-old Ashley Miller two years in jail and eight years probation. Both women are white.

Michael Chastang, 28, was sentenced to 10 years for being the mastermind of the robbery, and bank teller Bennie Allen III, 23, who pleaded guilty, was sentenced to five years.  Both men are black. Chastang also is serving 15 years on unrelated drug-trafficking charges and Allen was on probation for a drug conviction.

Johnston and Miller — both former exotic dancers who went by the stage names "Charlie" and "Adrienne" — were nicknamed the "Barbie bandits" after they were videotaped wearing sunglasses and laughing as they appeared to rob a Bank of America branch in Acworth of $11,000.

Because this case seems to me to be more about gender than about race, I cannot help but wonder if the NAACP is the right group to be calling for an investigation.  Then, again, I doubt that the National Organization for Women is generally too troubled when Barbies getting softer sentences than Kens, so maybe I should not be too surprised that this case is being racialized rather than gendered.  I suppose if we really wanted to get this story buzzing, we might speculate about whether a President McCain or a President Clinton or a President Obama would be most likely to encourage the US Civil Rights division to take a close look at Georgia state sentencing practices.

April 8, 2008 in Race, Class, and Gender | Permalink | Comments (20) | TrackBack

SCOTUS Kennedy capital child rape case buzz starting

Next week the Supreme Court will hear oral argument on the constitutionality of the death penalty for a child rape offense in Kennedy v. Louisiana.  As evidenced by this article in USA Today, the pre-argument media buzz is starting.  Here are snippets:

The Supreme Court will weigh the constitutionality of the death penalty for child rape next week, in the case of a Louisiana man convicted of raping his 8-year-old stepdaughter. The dispute, closely followed by state officials, social workers and defendants' rights groups, marks the first time since 1977 that the justices will consider whether rape can be punished by death....

Several states, including Missouri, have signaled that if the court permits the death penalty for child rape in Louisiana, they may try to enact such laws. Five states already plainly allow capital punishment for raping young children.

Social workers warn that if the court sanctions the penalty for child rape, it could further discourage reporting of the crime because in the majority of child sexual assaults, the attacker is a relative or friend of the victim....

April 8, 2008 in Kennedy child rape case | Permalink | Comments (8) | TrackBack

April 7, 2008

Hawai'i Supreme Court okays state's Blakely fix

Thanks to this post at How Appealing, I saw that the Hawai'i Supreme Court, in a lengthy split ruling, approved the constitutionality of the state's recent Blakely fix legislation.  This article from the Honolulu Advertiser describes the basics of the ruling:

The Hawai'i Supreme Court has approved a new state law, passed by the Legislature in special session last year, that changes procedures for imposition of "enhanced" sentences of criminals identified as dangers to the community. In finding the law constitutional, however, the high court said prosecutors must notify such defendants at the outset of such a case that enhanced sentencing will be pursued if they are convicted.

In a 72-page, 3-2 decision written by Justice Steven Levinson, the court also approved provisions of the law that allows it to be applied retroactively to convicts who have received enhanced sentences. Hawai'i Attorney General Mark Bennett, who argued the constitutionality of the law before the high court, said "there are good and bad things" in the decision.

Thanks also to How Appealing, here are links to the ruling, in the form of a majority opinion; an opinion concurring and dissenting; and a dissenting opinion.

April 7, 2008 in Blakely in the States | Permalink | Comments (1) | TrackBack

Local court starts examining Ohio's execution protocol

This AP story provides some highlights from the first day of a state court litigation concerning Ohio's lethal injection protocol:

An anesthesiologist testified Monday that Ohio's lethal injection procedure isn't appropriate for dogs or cats, let alone humans. Dr. Mark Heath's testimony on behalf of two murder defendants came in a Lorain County hearing on the constitutionality of state's method for putting prisoners to death.

Heath, an assistant professor of anesthesiology at Columbia University, says it's possible to perform lethal injection of prisoners in a humane manner, but that Ohio's method falls below the standard for euthanizing household pets....

Heath testified that the design of Ohio's death house was problematic because it separates the inmate from the person administering the drugs in two separate rooms.  The rooms are separated by a one-way mirror. “Doing it that way substantially increases the risk of a major problem occurring,” said Heath, adding later, “I would never induce general anesthesia from a different room through long tubing.”...

Difficulties with two executions in recent years, in which the execution team struggled to find suitable veins in inmates' arms, brought complaints that the method is unconstitutionally cruel and unusual.

Ohio officials stand by the procedure. The state was expected to counter with expert witness Dr. Mark Dershwitz, an anesthesiologist from Massachusetts, who will testify via video conference Tuesday.

Some recent related posts:

April 7, 2008 in Baze lethal injection case | Permalink | Comments (1) | TrackBack

Thoughtful thoughts on Judge Weinstein's work in Polizzi

Over at Volokh, Orin Kerr has this extended discussion of Judge Weinstein's very extended Polizzi opinion (basics here and here), which reverses a conviction in a child porn case on debatable legal grounds.  Here is the start of Orin's analysis:

Polizzi reads less like a judicial decision than a 266-page book of opinion essays. If I understand the reasoning of the opinion — not a small challenge with an opinion written in such a complex way over hundreds of pages — the basic argument is this: Recent Supreme Court decisions interpreting the Sixth Amendment like Blakely v. Washington suggest that the current Supreme Court greatly values the role of the jury, and as a result older precedents saying that the jury can't hear about sentences are inconsistent with the spirit of the Supreme Court's new cases and are no longer binding precedent.

Related posts on Polizzi:

April 7, 2008 in Blakely in Sentencing Courts | Permalink | Comments (9) | TrackBack

April 6, 2008

The Second Amendment and speculating about post-Heller politics

The folks at Politico have this interesting new piece, headlined "Obama aims for pro-gun vote."  The piece indirectly reinforces my view that the Supreme Court's Heller case could significantly change the politics of gun law debates.  Here are snippets from the article:

Barack Obama [is]... making a play for pro-gun voters in rural Pennsylvania.  By highlighting his background in constitutional law and downplaying his voting record, Obama is engaging in a quiet but targeted drive to win over an important constituency that on the surface might seem hostile to his views....

“Guns are a cultural lens through which they view candidates,” said Jim Kessler, vice president for policy at Third Way, a progressive think tank.  “If you are seen as way off on that issue, then you seem way off on everything.  If you are seen as OK, if the lens is clearer, then they continue to look at you and size you up on other things.”

“For Obama, who is less known and is from Chicago, a city guy and an African American, the feeling is that he is anti-gun,” Kessler continued. “By handling the Second Amendment correctly, he starts to get a hearing among these folks.” 

Obama aides would not discuss the campaign’s strategy.  While the effort so far in Pennsylvania appears modest, it is noteworthy for a race that has largely avoided such direct engagement with gun owners.  The campaign has asked gun rights advocates like state Rep. Dan Surra, a Democrat from rural Elk County with an “A+” rating from the NRA, to form a coalition of supporters who can vouch for Obama.  “It is clear out there that I am for Obama, and they have reached out to me as a sportsman and a gun owner,” Surra said Thursday.  “There has been an outreach to pro-gun legislators, pro-gun people who are sympathetic to Obama’s message.”...

Obama has long backed gun-control measures, including a ban on semiautomatic weapons and concealed weapons, and a limit on handgun purchases to one a month.  He has declined to take a stance on the legality of the handgun prohibition in Washington, D.C., which the U.S. Supreme Court is reviewing, although Obama has voiced support for the right of state and local governments to regulate guns.

In the Senate, he and Clinton broke on one vote, in July 2006. Siding with gun-rights advocates, Obama voted to prohibit the confiscation of firearms during an emergency or natural disaster.  Clinton was one of 16 senators to oppose the amendment.

A two-page white paper on Obama’s website doesn’t mention his voting record.  Instead, he introduces himself as a former constitutional law professor who “believes the Second Amendment creates an individual right, and he greatly respects the constitutional rights of Americans to bear arms.”

“He will protect the rights of hunters and other law-abiding Americans to purchase, own, transport, and use guns for the purposes of hunting and target shooting,” the paper states. “He also believes that the right is subject to reasonable and common sense regulation.” ...

Obama’s approach is similar to one advocated by Third Way, which issued a seven-step blueprint in 2006 to close the “gun gap” with Republicans.  In a memo on its website, the group urges progressives to avoid silence on gun issues, and instead “redefine the issue in a way that appeals to gun owning voters.” ... The National Rifle Association posted an article on its website in February warning members against buying into Obama and Clinton, who were using the “scripted rhetorical tricks in the Third Way playbook to the letter.”

As I have highlighted in prior posts, if (and when?) the Supreme Court concludes in Heller that the Second Amendment protects an individual right to keep and bear arms, the next big legal and political question will be what government regulations are consistent with that right.  And, as I have also highlighted in prior posts, I think the first hot post-Heller topics for federal litigation and debate will be the reasonableness of (1) broad federal laws prohibiting all felons (and domestic violence misdemeanants) from gun ownership and (2) extreme sentencing laws that can add decades to a sentence for possessing a gun in the wrong setting.

I am not sure what the National Rifle Association or the Third Way playbook has to say about these potential post-Heller gun rights/regulation topics.  But my point here is to highlight, yet again, how any pro-individual Second Amendment ruling in Heller could make the legal and political debates over gun rights look a lot different in a few months.

Prior posts on the Second Amendment and post-Heller gun litigation:

April 6, 2008 in Second Amendment issues | Permalink | Comments (7) | TrackBack

NYT Magazine notices web-based prison culture (and economics) version 2.0

0406medium Today's New York Times Magazine has this interesting piece, headlined "Soft Cell," that notices how a website has created a community for the family and friends of incarcerated persons.  Here are snippets from the piece:

Prison Talk, a big board with nearly 150,000 members and 2,500 regular readers a day ...caters to what turns out to be an underserved consumer niche: family and friends of the incarcerated. Prison inmates, whose Internet access is extremely limited, also turn up periodically, usually seeking pen pals through a third party.  The site, which costs nothing to join, was founded seven years ago and has drawn around 3.5 million messages, including poetry, small talk, business deals, memoirs, sermons, laments, photo albums and ideological screeds. Like the sprawling American prison system itself, the board has come to constitute a robust social reality — albeit one whose contents can’t be searched with Google or other engines, since Prison Talk is closed to the unregistered.

The board’s activity is propelled by the frustration and enterprise of lonelyhearts who crave contact while fighting boredom and despair. The postings, including those from former inmates, dramatize the widespread effects of imprisonment as vividly as any book since the 2000 exposé “Newjack,” Ted Conover’s chronicle of his year working as a corrections officer in Sing Sing, the maximum-security state prison in New York. And even Conover couldn’t offer the sheer volume of fine-grain logistical detail and jaw-dropping incongruities that surface on Prison Talk: topics on the site include marrying someone in prison; raising children whose parents are imprisoned; loving lifers; curing dry winter skin; preparing for executions; and having fun (jokey guards, nightly dance-offs) behind bars.

The posts themselves are by turns rueful, salacious, puzzled and pleading.... Prison Talk promises support without judgment, and in accordance with the site’s bylaws, uncooperative members are banned. (The site also counsels members to be circumspect with information that might be used against inmates or jeopardize their appeals.)

David Frisk, an aerial photographer and home-automation expert, started Prison Talk in 2001 to helped convicts’ loved ones navigate the prison system.  Frisk hatched his idea in a jail cell: he served time in the early ’90s in a medium-security federal prison for pawning a rifle while on probation for auto theft. Like anyone working online, he has since developed theories about revenue streams.  Small but constant banner ads, targeted for his audience, run along the top of Prison Talk.... Frisk, who is known on the site by his screen name, Fed-X, has been accused by detractors of exploiting a vulnerable and largely female membership by encouraging dependence; soliciting contributions as if the site were a charitable cause and not an ad-sponsored business; and promoting dodgy ventures like a print magazine that some subscribers say they never received...

Most Prison Talk members, however, seem fiercely loyal to him, and say they feel deeply beholden to Prison Talk itself. Many of them virtually live on the site, concluding their posts with tickers — countdown widgets, like the ones used on pregnancy and weight-loss boards — showing how much time is left in their chosen inmate’s sentence....

A small band of board activists, led in part by a Prison Talk member named Judy Wickliff, has recently used the site to plan a latter-day Boston Tea Party to protest the disenfranchisement of American prisoners. “No incarceration without representation” is their slogan. In July they plan to bombard legislators with mailed tea bags and a list of proposed reforms to the criminal-justice system.  It could be said that Prison Talk is steadily documenting and even galvanizing a subculture, if it weren’t for the February report from the Pew Center on the States that one in 99 people in America is now in prison. Let’s call it a culture, then.

The main website for Prison Talk is here, and I would be interested in reader reactions to both Prison Talk and to this NYTimes Magazine article about it. 

My first reaction is a bit of surprise that the Prison Talk board has "only" 150,000 members even though it has been around since 2001.  The number 150,000, which might seem pretty big, likely represents far less than 1% of the total population of Americans who have been incarcerated or have a family member or close friend who has been incarcerated since 2001.  Then again, since many criminal defendants and their friends and family are relatively poor, it is possible that only a limited percentage of the incarcerated and those around them have consistent access to a computer with an effective Internet connection.

April 6, 2008 in Scope of Imprisonment | Permalink | Comments (2) | TrackBack

More great local coverage of crack retroactivity realities

Local newspapers continue to provide interesting and valuable coverage of the local realities of implementing the new federal sentencing guidelines for crack offenses.  Here are links to notable new stories from Arizona and Florida and South Carolina:

April 6, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (1) | TrackBack

Georgia legislature passes revised sex offender residency restrictions

As detailed in posts here and here, last year the Georgia Supreme Court struck down part of the state's sex offender residency restriction on a takings theory.  Now, as detailed in local stories here and here, the state legislature has tried to fix the law.  However, as this excerpt spotlights, this legislative fix may not end the constitutional litigation over these matters:

The Georgia General Assembly has passed legislation reinstating residency and work restrictions on registered sex offenders.  The restrictions were voted on Friday without going through the typical Senate committee process, and without hearings on the Senate side....

Senate President Pro Tempore Eric Johnson ... stated that the bill addressed the Georgia Supreme Court's concerns about property rights.  However, the bill only exempts sex offenders who own their own homes.  In that case, the sex offenders can remain in their homes if a day-care center, church, park, or other forbidden area locates within 1,000 feet of the home.

Tenancy is a property right, by law, said Sen. Vincent Fort, D-Atlanta.  He is concerned that the bill does not provide protection for renters. "There could be further legal challenges," Johnson said....  "We can continue to address some things in the future," Johnson said.  But, "if we do not adopt this bill today, there are no restrictions on where they can live and work.  It is critical that we now adopt 908, which is now in SB 1."...

"On its face, it's unconstitutional," said Sen. Nan Orrock (Email), D-Atlanta. "There is different treatment of homeowners and those who rent.  We're already in murky constitutional ground."  Then, there are the unintended consequences, she said. "With sexual offenders who have served their time and who are back in the community, our highest priority is that they not re-offend and prey on another victim," Orrock said.  But putting in the residency restrictions "set in motion this moving around of former sex offenders."  Studies show, clearly, she said, that sex offenders who have to move from a stable home or job are more likely to re-offend....

The restrictions are exactly the same as the ones implemented in 2006. In almost every case, all registered sex offenders are treated equally, regardless of whether they were convicted of child rape or public urination.  No sex offender may live within 1,000 feet of a child care facility, church, school, or "area where minors congregate."  Those areas are defined as: parks, recreation facilities, playgrounds, skating rinks, neighborhood centers, gymnasiums, school bus stops, public libraries and public and community swimming pools. Adding libraries is the only change to that definition.

Some related posts on sex offender residency restrictions:

April 6, 2008 in Sex Offender Sentencing | Permalink | Comments (27) | TrackBack

New study confirms we do not treat murderers like dogs

Vet As this AP story details, examination of lethal injection protocols is not awaiting a Supreme Court ruling in Baze.  Here is the latest news based on the latest research:

Nearly all lethal injection executions have occurred in states where veterinarians are not allowed to use the same method to euthanize animals, according to a new study.

One of the three drugs used in executions, the one that paralyzes the condemned inmate, has been banned from use in animal euthanasia by at least 42 states, said the study author Ty Alper, a death penalty opponent and associate director of the Death Penalty Clinic at the University of California-Berkeley School of Law.  Those states include the five leaders in lethal injections — Texas, Oklahoma, Virginia, Missouri and North Carolina — and account for 907 of the 929 executions that have been carried out by that method since 1982.

More details on the new study and related issues are available here from Lethal Injection.org.  The new study by Ty Alper, which is titled "Anesthetizing the Public Conscience: Lethal Injection and Animal Euthanasia," is available at this link.

Some related posts:

April 6, 2008 in Baze lethal injection case | Permalink | Comments (0) | TrackBack

Examining Florida's tough sentencing laws

Today's Daytona Beach News-Journal has this pair of interesting pieces exploring Florida's tough sentencing laws:

Here is an excerpt from the first of these pieces:

By the end of the year, Florida's prison population could top 100,000. The cost of keeping those prisoners behind bars runs close to $20,000 per inmate, per year, and the total correctional budget is more than $2.5 billion. Despite a prison-building spree in the 1990s, Florida's state correctional institutions are near capacity, and the state will need an estimated two new prisons a year to keep up.

When state coffers are full, prison budgets get little scrutiny. But lawmakers are staring down a $2 billion hole in next year's budget.  And some of them are coming to the realization that Florida's lock 'em up philosophy has gone too far, that it's time to rethink some of the overbearing sentencing laws that cost the state so much.  The alternative -- slashing drug treatment and education for inmates and reducing programs that help people turn away from crime -- is all but guaranteed to boomerang on the state, producing an even greater number of people locked hopelessly behind bars and an even tougher strain on taxpayers.

April 6, 2008 in Scope of Imprisonment | Permalink | Comments (4) | TrackBack