May 31, 2008
The inevitability of GPS tracking and cost-saving technocorrections
I just came across this recent UK Reuters article headlined "GPS grows as a crime-fighting tool in US." These excerpts from the piece confirm my instincts that widespread use of GPS tracking and other cost-saving technocorrections are inevitable in the years ahead:
Coast to coast, authorities are expanding electronic monitoring to fight crime -- moving beyond its early use in tracking movements of sex offenders to include gang members who have been released on probation, people accused of repeated violence against women and even truant students at schools.
At the heart of the surveillance is a technology best-known for helping people on the road: the global positioning system. Other countries are watching closely. GPS monitoring is already established in parts of Europe but applied more narrowly, and it's growing fast in Latin America, said Jeff Durski, spokesman for iSECUREtrac Corp, based in Omaha, Nebraska, which manufactures the devices and leases them to police and courts.
Massachusetts, one of the first states to employ it in 2006, now has about 700 people fitted with electronic bracelets that send signals via satellite to computer servers if they go places they shouldn't -- so-called "exclusion zones." The Massachusetts law, which allows judges to impose electronic monitoring as a condition of a restraining order, has become a model for states such as Illinois and Oklahoma.
The Oklahoma Senate voted 47-0 in April to enlist GPS technology to protect victims of domestic violence. The Illinois House of Representatives unanimously passed similar surveillance legislation last month.
Part of the appeal is money. GPS is a cost-effective alternative to prison, said Paul Lucci, deputy commissioner of the Massachusetts Probation Service, pointing to a chart taped to his office wall showing a state-wide surge in use of GPS -- mostly to track sex offenders but also for others. "These people probably should be in jail but the cost of incarceration can be as much as $30,000 or $40,000 (15,000 or 20,000 pounds) a year. The GPS costs about $3,400 a year," he said. "I think it's good on both sides. It is a device to protect the public. Although we can't guarantee anyone's safety, it provides an extra level of supervision on somebody. On the other side, for a defense attorney, it is in lieu of incarceration," said Lucci.
Some related posts on GPS tracking:
- Are microchip implants for offenders inevitable?
- UK getting serious about GPS through microchip implants
- A sober (and caffeinated) look at GPS tracking realities
- Are we willing to pay the costs of (effective?) technocorrections like GPS tracking?
- The devil's in the details of GPS tracking of sex offenders
- New article examining incapacitation innovations
LDF report documents disparties in juve LWOP in Mississippi
This AP article reports on a new report on juve LWOP that came out this past week:
Most juveniles sentenced to life without the possibility of parole in Mississippi are black, a disparity that underscores the need to reform sentencing guidelines, according to a report by the NAACP Legal Defense and Educational Fund. Poverty, lack of education and broken homes are among other traits shared by youngsters sentenced to spend the rest of their lives behind bars, the report said.
Twenty of the 26 people currently serving life without parole after being convicted as juveniles in Mississippi are black, according to the 28-page report released this week. Blacks make up about 37 percent of Mississippi’s population, but comprise nearly 80 percent of the juvenile offenders serving life sentences.
Research is under way to determine if similar percentages of juvenile minorities are sentenced to life without parole in other states, but the Legal Defense Fund report focused solely on Mississippi, said Holly Thomas, assistant counsel for the organization. “We tried to look at Mississippi as a microcosm of a larger issue,” Thomas told The Associated Press on Wednesday.
The new report by LDF is titled "No Chance to Make it Right: Life Without Parole for Juvenile Offenders in Mississippi," and it can be accessed at this link. The official LDF webpage provides this summary of the report:
[This] groundbreaking report examining the racial, social, political, and economic circumstances surrounding juvenile life without parole sentencing in Mississippi. LDF's study, the first comprehensive analysis of Mississippi's practice of sentencing teenagers to life without parole, finds that blacks are significantly overrepresented among the youth currently serving such sentences. In light of this and other troubling findings, LDF calls for a series of reforms including the immediate elimination of life without parole sentences for juveniles.
Some related posts:
May 30, 2008
Thoughtful sentencing opinion from the hearland to close out the week
I am pleased to call it a work week with the posting of an effective new opinion from Sentencing Hall of Famer Judge Joseph F. Bataillon in US v. Bennett, No. 8:07CR235 (D. Neb. May 30, 2008) (available for download below). As is his practice, Chief Judge Bataillon covers lots of ground effectively and efficiently in this latest effort. Here is one of a number of notable passages:
[F]or policy reasons, and because statutory mandatory minima dictated many terms of the Guidelines, the Commission departed from past practices in setting offense levels for such crimes as fraud, drug trafficking, and child crimes and sexual offenses. Fifteen-Year Assessment at 15, 72-73; see Kimbrough, 128 S. Ct. at 567. Consequently, the Guideline ranges of imprisonment for those crimes are a less reliable appraisal of a fair sentence. See Kimbrough, 128 S. Ct. at 574. In cases involving application of Guidelines that do not exemplify the Commission's exercise of its characteristic institutional role — basing its determinations on “‘empirical data and national experience, guided by a professional staff with appropriate expertise,’” — it is not an abuse of discretion for a district court to conclude when sentencing a particular defendant that application of the guideline will yield a sentence “greater than necessary”to achieve the purposes set out in § 3553(a). Kimbrough, 128 S. Ct. at 574-75 (quoting United States v. Pruitt, 502 F.3d 1154, 1171 (10th Cir. 2007) (McConnell, J., concurring)).
Another batch of USSC sentencing data
FY2008 2nd Quarterly Sentencing Update: An extensive set of tables and charts presenting cumulative quarterly data on cases sentenced in fiscal year 2008. The numbers are prepared using data from cases in which the defendant was sentenced by the close-of-business on March 31, 2008 and which were received, coded, and edited by the Commission by May 27, 2008.
Scott Panetti deemed competent for execution
As reported here at DPIC linking to this local story, "U.S. District Court Judge Sam Sparks in Texas has ruled Scott Panetti mentally competent enough to be executed." Here are more details from the local story:
Nearly one year after a reprieve was ordered by the U.S. Supreme Court for Fredericksburg convicted killer Scott Panetti, 50, the U.S. District Court in Austin has determined that Panetti is competent to be executed for the 1992 shooting deaths of his wife’s parents.
The recent order by Presiding Judge Sam Sparks of the U.S. District Court for the Western District now sends the case before the 5th Circuit Court, setting up a chain of legal proceedings that could ultimately return it to the U.S. Supreme Court.
District Attorney Bruce Curry of the 216th Judicial District in Kerrville confirmed Friday that Judge Sparks had re-heard the case and that he had issued “some fairly extensive findings of fact” in declaring Panetti competent to be executed.
UPDATE: Providing a fitting companion this this story is this extended post at DMIblog entitled "Mental Illness and the Death Penalty."
The true back-story of the Blakely-Booker jurisprudential mess?
Though it makes no mention of sentencing jurisprudence, this new piece up on SSRN develops a theory that may help explain how and why the Apprendi-Blakely-Booker line of cases has produced such a doctrinal mess. The piece by Ben Barton is titled "Judges, Lawyers, and a Predictive Theory of Legal Complexity," and here is the abstract:
This Article uses public choice theory and the "new institutionalism" to discuss the incentives, proclivities, and shared backgrounds of lawyers and judges. In America every law-making judge has a single unifying characteristic, each is a former lawyer. This shared background has powerful and unexplored effects on the shape and structure of American law. This Article argues that the shared characteristics, thought-processes, training, and incentives of Judges and lawyers lead inexorably to greater complexity in judge-made law. These same factors lead to the following prediction: judge-created law will be most complex in areas where a) elite lawyers regularly practice; b) judges may have a personal preference in the case that can be written-around by way of legal complexity; and c) the subject area interests the judge, or is generally considered prestigious. The Article uses the law of standing as a case study.
May 29, 2008
Recommended watching/recording (and soliciting reviews)
Though I likely will be watching the Lost finale tonight, here are two sentencing programs that I plan to record and watch in the days ahead:
- From IFC, "At the Death House Door"
- From National Geographic, "Prison Nation"
If anyone fancies becoming a sentencing-focused Roger Ebert, I would be grateful for (short or extended) reviews of these programs (or other video recommendations) in the comments or via e-mail. I have been seriously thinking about using movies more when teaching my sentencing course next year, and so I would like to start a formal file with movie options and accompanying reviews.
Will NJ finally reform its drug sentencing laws?
If sound policymaking were a priority, the New Jersey legislature would have long ago responded to the the New Jersey Commission to Review Criminal Sentencing potent 2005 report urging reforms to the state's drug sentencing laws and particularly its laws creating "drug-free zones" (background here). But, from the better-late-than-never file comes this new story from the Newark Star-Ledger suggesting that proposed reforms may be in the works:
Two prominent state lawmakers yesterday predicted passage by next month of a bill to give judges some flexibility in sentencing people arrested for nonviolent drug crimes near schools. Support for the bill from Senate President Richard Codey (D-Essex) and Assemblyman Joseph Cryan (D-Union) came on the same day a new report highlighted the high cost New Jersey pays to keep nonviolent drug users and small-time dealers behind bars.....
"No one wants to appear to be soft on crime. I know that's the big elephant in the room," Cryan said. "But the time has come for us to change the way we do things from a lock 'em up, throw away the key philosophy. Let's understand that hasn't worked." Codey, once an opponent of the legislation, supports the latest version, amended by the Attorney General's Office with his participation, because it maintains the 1,000-foot drug-free perimeter. "For me, this is for first-time offenders, where no violence involved," Codey said.
Two Republicans on the committee abstained because the bill did not guarantee treatment and supervision for offenders, and did not upgrade penalties for violent drug criminals. "We have gone from an overzealous bill that caught people in an unfair trap to a bill that will allow everyone to walk," Assemblyman Jon Bramnick (R-Union) said yesterday.
Some related posts:
Passage from McClellan's book on the Libby commutation
Scott McClellan’s bombshell book... [includes] a forceful denunciation of President Bush’s decision to commute Scooter Libby’s sentence after his conviction for perjury and obstruction of justice in the Valerie Plame affair:
It’s … clear to me that Scooter Libby was guilty of the perjury and obstruction crimes for which he was convicted. When the president commuted Libby’s prison sentence and thereby protected him from serving even one day behind bars, I was disappointed. This kind of special treatment undermines our system of justice…. President Bush certainly has the right and the power to commute Libby’s sentence. But in choosing to do so, he sent an unfortunate message to America and the world — that in the United States criminal behavior on behalf of a political cause may go unpunished if those who support that cause have the power to make it happen.
The Vanity Fair post goes on to not that John McCain was spoke out on behalf of Libby in 2007 but that "McCain has declined to speak about the commutation, and his campaign has not returned VF Daily’s request to comment on McClellan’s statements." Needless to say, I think (along surely with folks at Pardon Power) that the Libby commutation should be a campaign issue in the weeks and months ahead.
Some related posts:
- Latest FSR issue on "Learning from Libby"
- The inside backstory on the Libby commutation
- Few giving the President sentencing thanks
- Pardon politics and the 2008 campaign
Notable examination of doctors and the death penalty
I just came across this SSRN posting of an interesting-looking paper titled "Doctors, Discipline, and the Death Penalty: Professional Implications of Safe Harbor Statutes." Here is the abstract:
State capital punishment statutes generally contemplate the involvement of medical providers, and courts have acknowledged that the qualifications of lethal injection personnel have a constitutionally relevant dimension. However, the American Medical Association has consistently voiced its opposition to any medical involvement in executions. In recent years, some states have responded to this conflict by adopting statutory mechanisms to encourage medical participation in lethal injections. These safe harbor provisions, which prohibit state medical boards from taking disciplinary action against licensed medical personnel who choose to participate in executions, were adopted without legislative or public debate about their merits and have yet to be examined in the academic literature.
Safe harbor provisions serve controversial goals related to criminal punishment, rather than supporting the traditional goals of medical regulation. As a result, they call into question the efficacy and independence of state medical boards in protecting patient interests and are likely to have a corrosive effect on public confidence in the medical profession. Because even the best available justification for these disciplinary safe harbors is not persuasive enough to outweigh their professional implications, the establishment of safe harbors in the context of capital punishment is ill advised as a policy matter. Contrary to critics' assertions, allowing medical boards to exercise their discretion to discipline execution participants will not sound a death knell for the death penalty. However, in stripping executions of their clinical veneer, our society may be forced to come to terms with a process it has long sought to conceal.
Some related posts on doctors and execution protocols:
- Readings on lethal injection protocols and the role of doctors in executions
- Are botched executions inevitable?
- My debatable PENNumbra views on Baze
A max sentence driven by a concern for (four-legged) victims
I always wonder if the various folks who debate victims' rights at sentencing change their views when the victims are animals rather than people. In any event, this local story, headlined "Animal abuse draws prison: Glen Burnie woman sentenced to 3 years for mistreating dogs," highlights that at least one state judge is quite attentive to four-legged victims at sentencing. Here are details:
Kelly Lynn Schreck, the woman behind what an Anne Arundel County judge called yesterday the worst animal abuse case he had ever seen, had simply planned to breed Great Danes. But she struggled to care for her growing collection of dogs amid increasing marital problems, her lawyer said yesterday in county Circuit Court, which was borne out by neighbors' complaints and animal control officers' grisly discovery in her Glen Burnie home: five dead, emaciated dogs and four others who were starving in cages, their bones protruding.
"She needs to be in her own cage for a period of time," prosecutor Kimberly DiPietro said. "At least, she'll know she'll get fed."
Judge Paul A. Hackner sentenced Schreck, 28, to three years in prison and three years' probation, the maximum for two counts of the felony charge of animal mutilation and well above sentencing guidelines of probation to three months in jail. In addition, he banned her from owning pets for five years and ordered her to repay the county almost $8,000 in veterinary fees.
Hackner rejected her lawyer's defense that she was too mentally ill to realize the consequences of her neglect, calling her "too arrogant and too proud to say she needed help. This is not a marginal case.... She's off gallivanting when these dogs are dying. It's really a horrible case."
I do not think I have ever heard of a ban on owning pets as a part of a criminal sentence, but I suppose it makes some sense in this setting. But does this mean Schreck might have to go back to jail if she brings a goldfish home while serving probation?
May 28, 2008
New study urging drug sentencing alternatives in New Jersey to save $$$
As detailed in this new AP story, "New Jersey could save millions by reforming sentencing laws for nonviolent drug offenses, a new study finds." Here are more basic details from the AP report:
The Drug Policy Alliance study determined alternatives to jail for nonviolent drug offenders would let more money be invested in the state's poorest families and communities. It found the state spends $331 million per year jailing nonviolent drug offenders, or more than the entire corrections budgets for 16 states. It also found the state is also losing out on taxable income by sending nonviolent drug offenders to jail and limiting their future employment.
The new Drug Policy Alliance study is titled "Wasting Money, Wasting Lives: Calculating the Hidden Costs of Incarceration in New Jersey," and can be accessed at this webpage. Here is how the report is summarized:
This report is the first-ever analysis of the hidden and comprehensive costs of incarceration in New Jersey. In addition to the cost of prison beds (the usual measure of incarceration costs), the report examines hidden costs such as lost wages during the time people are incarcerated, lost lifetime wages that result from diminished employment opportunities, lost taxable income, and lost child support. At a time when the state is facing severe budget deficits and cutting critical social programs and services, the report finds that the state is losing literally billions of dollars in direct and hidden costs as a result of the harsh and ineffective overuse of incarceration. The report looks at costs state-wide and also provides a snapshot of costs for New Jersey’s largest city, Newark.
OSU Dean becomes the new (interim) Ohio Attorney General
Of course, this breaking Ohio legal news is more central to my universe than to the broader sentencing world. Still, everyone involved in lawyering and legal education should find this development interesting:
Nancy Hardin Rogers, dean of the Ohio State University Moritz College of Law has been named interim Ohio attorney general this morning by Gov. Ted Strickland.
She will serve as an interim replacement until voters choose a replacement for Marc Dann in the Nov. 4 election to serve the remainder of Dann's term until early 2011. She became dean in August 2001 after serving two years as vice provost for academic administration at OSU. Her law degree is from Yale. “She is a person of great accomplishment who is widely admired by her colleagues,” Strickland said, adding that she will bring “dignity, professionalism and focus” to the office.
Strickland said Rogers has no interest in running for the office, but rather is being brought in for six months to “right the ship in the attorney general's office.” She plans to return to Ohio State after the November election.
Because I respect new AG Rogers so much, I will surely have a hard time objectively assessing her work in her new (interim) job. Still, I expect that there will be some significant legal and political issues relating to crime and justice (particularly with regards to the death penalty) that are likely to cross her desk before she returns to the ivory tower. I cannot help in this setting to be reminded of the old Chinese curse/proverb: "May you live in interesting times."
UPDATE: This editorial from the Cincinnati Enquirer may pay new Ohio AG Rogers the ultimate complement in the course of lauding Governor Strickland's choice:
The governor said he would make his choice based on maturity, integrity, experience and management skills – and apparently he meant it. Nancy Rogers seems an exact opposite of Marc Dann in nearly every meaningful respect.
Federal clemency news and notes
Federal clemency is in the news a bit this week. For example, this New York Times article about the Supreme Court's refusal to hear former Illinois Gov. George Ryan's appeal of his federal conviction reports that "his lawyer said he would probably seek a commutation from President Bush of what is left of his more-than-six-year federal prison sentence."
Relatedly, among lots of great new stuff at Pardon Power is coverage of this interesting Washington Post piece about the job facing the new federal Pardon Attorney. Here are snippets from the article:
President Bush named [Ronald L.] Rodgers last month to head the Justice Department's pardon office, a unit that has suffered under substantial backlogs after its previous leader was accused of mismanagement and of making racially offensive statements.
Rodgers inherited a stack of nearly 2,000 requests for pardons and commutations of prison sentences in the waning months of the president's administration, a time when pressure to exercise the clemency power intensifies. "If there's ever been a time when the pardon attorney should have an impact, this is it," said P.S. Ruckman Jr., an associate professor at Rock Valley College in Illinois who studies clemency patterns.
Rodgers, a Naval Academy graduate who had worked in a drug intelligence unit at Justice since 1999, declined interview requests. But department spokesman Erik Ablin said that the pardon office is on a "record-setting pace" for receiving clemency petitions this year. About half a dozen lawyers assist Rodgers in the small office, Ablin said....
Lawyers who represent clients seeking pardons and scholars who research clemency said they do not expect Bush, who has granted few such requests as president and in his previous role as Texas governor, to do an about-face during his last months in office. For one thing, they said, the controversy over last-minute pardons granted by President Bill Clinton, including a pass for fugitive financier Marc Rich, lingers. The Rich decision touched off congressional investigations and a public relations firestorm.
Rodgers's law-and-order background also may influence the process. H. Abbie Erler, a professor at Kenyon College in Ohio, pointed out that Rodgers's record as a former military official and longtime investigator in the narcotics area may not make him amenable to granting mercy to convicted felons. "That sort of sets the tone," said Erler, who wrote a recent study about the factors that contribute to pardon grants.
Bush has pardoned 157 people and commuted the sentences of six more since 2001, according to Justice Department statistics. The majority of the cases involve offenders who committed relatively minor drug violations or white-collar crimes, experts said. During the same period, the president denied 1,429 pardon applications and 5,683 more requests for commuted sentences.
"I don't think this president has taken the pardon power very seriously, and I don't see any indication that's going to change," said Margaret Colgate Love, the pardon attorney under President George H.W. Bush. "I'm just waiting for the next administration. I'm not looking for anything from this one."
This Post article strongly suggests that former Gov. Ryan ought not be holding his breath for relief from a fellow chief executive.
Third post-Baze lethal injection conducted in Virginia
As detailed in this Reuters article, "Virginia put a convicted murderer to death by lethal injection on Tuesday in the third U.S. execution since the Supreme Court ended an unofficial moratorium on capital punishment last month." Here are a few more details:
Kevin Green, 31, who was convicted and sentenced to death for the 1998 shooting death of a convenience store owner during a robbery, was put to death shortly after 10 p.m. EDT at the Greensville Correctional Center in Jarratt, Virginia....
Green was the first person executed in Virginia since November 9, 2006, and the third death row inmate executed since the Supreme Court on April 16 upheld the three-drug cocktail used for lethal injections.... [T]he execution occurred after Gov. Timothy Kaine rejected a request for clemency, based on claims that Green is mentally retarded.
May 27, 2008
"Hire an ex-con in Philly, get a tax break"
The title of this post in the headline given by CNN to this AP piece that talks at length about various reentry issues. Here are the basics:
[T]he city of Philadelphia is making a concerted effort to encourage the hiring of ex-convicts amid a renewed interest nationwide in dealing with high recidivism, growing crime rates and exploding prison populations....
So on his 100th day in office last month, Mayor Michael Nutter announced a program, being headed by an ex-offender, that gives $10,000 a year in municipal tax credits to companies that hire former prisoners and provide them tuition support or vocational training. "This is one of the best crime-prevention programs we'll ever have," he said....
Philadelphia has set aside money for at least 500 potential new hires under the city program, but it's unclear how many businesses will take advantage. Some don't like to publicize their employment of former prisoners. Others, including banks and child-care centers, are restricted from hiring them. [The Office for the Re-entry of Ex-offenders] is also working with the city prison system to start planning for convicts' re-entries as soon as they are sentenced, rather than waiting until six months before their scheduled releases, as is current practice. "This city government has a responsibility to extend our hand and make sure that we're giving people that second chance," the mayor said.
Among other possible benefits, this tax-based reentry program may get some Law & Econ folks to start writing on sentencing and incarceration policies. Or, at the very least, these kinds of reentry programs can give Paul Caron at TaxProf an excuse to link here more.
Fourth Circuit affirms (way) above-guideline sentence in identity fraud case
The Fourth Circuit today affirms a sentence in US v. Evans, No. 06-4789 (4th Cir. May 27, 2008) (available here) that is waaaaay above the applicable guideline range. Here is how the opinion starts:
Charged with possessing and uttering a forged security, committing identity fraud, and possessing stolen mail, Ulysses Ray Evans pled guilty to identity fraud pursuant to a plea agreement in which he reserved his right to appeal a sentence in excess of the advisory Guidelines range. The district court sentenced him to 125 months’ imprisonment, a more than 300 percent deviation from the Guidelines range of twenty-four to thirty months. Evans appeals, maintaining that his sentence is unreasonable. We placed the case in abeyance awaiting the Supreme Court decision in Gall v. United States, 128 S. Ct. 586 (2007). That opinion now has issued, and we affirm.
Both the majority opinion and a concurrence in Evans have lots and lots of interesting talk about reasonableness review after Booker and Gall.
"Will death become the exception, not the rule?"
This effective piece from the Houston Chronicle, which reflects on a recent Texas jury decision to reject a death sentencing for a cop-killer, caries the same headline as this post. Here are excerpts:
If there was one thing that was all but certain in the world of Houston criminal justice, it was that someone who killed a law enforcement officer ended up paying with his life. So inevitable was this simple rule of cause and effect that the rare deviation came with a ready explanation....
But now comes the case of Juan Quintero. The life sentence given to the illegal immigrant by a jury last week has no such asterisk attached. The jury decided to spare him, despite the brutal killing of Houston police officer Rodney Johnson, which raises the question of whether any death case — even in the nation's death penalty capital — is a slam-dunk anymore....
Over the past few years, death sentences have declined by almost two-thirds in Texas and the rest of the country. There is no pat explanation for the drop, said Richard Dieter, executive director of the Death Penalty Information Center, an information clearinghouse opposed to capital punishment.
"I wouldn't attribute it to one reason," Dieter said. "Life without parole has to be included. The emergence of DNA testing and innocence cases has been a factor, maybe even a bigger factor. So many cases were highlighted in the media and on television shows and movies. There has been quite a pronounced effect that has given some skepticism to jurors when they are asked to impose a death sentence."
Two sentence reversals from the Sixth Circuit
As detailed at SCOTUSblog, the Justices returned from their barbeques without anything tasty for sentencing fans. Fortunately, the Sixth Circuit grilled up some sentences this morning in two opinion. Here are the basics as set forth each opinion's opening paragraphs:
US v. Penson, No. 06-3419 (6th Cir. May 27, 2008) (available here):
The instant case presents this court with a particularly troubling example of a procedurally unreasonable sentence that also exceeds the statutory-maximum sentence. George Washington Penson, III (“Penson”) appeals his sentence and the judgment entered by the United States District Court for the Northern District of Ohio. For the reasons explained below, we VACATE the judgment of the district court and REMAND for resentencing.
US v. Anderson, No. 07-5037 (6th Cir. May 27, 2008) (available here):
Ms. Donna Anderson appeals her sentence imposed pursuant to her guilty plea for money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i) (2006). She alleges that her sentence is procedurally unreasonable because the district court incorrectly calculated her recommended Sentencing Guidelines range in at least three ways.... Because we find that, while use of § 2S1.1(a)(1) was proper, Ms. Anderson should have been considered for a two-level safety valve reduction pursuant to § 2D1.1(b)(7) and should not have been granted a four-level minor participant reduction pursuant to § 3B1.2(a), and that these errors were not harmless, we VACATE the district court’s sentence and REMAND for resentencing consistent with this opinion.
NY Times editorial calling for Rockefeller drug law reforms
Today's New York Times has this editorial calling for drug sentencing reform in its home state. Here are highlights:
Enacted in 1973, New York’s Rockefeller drug laws penalized some first-time drug offenders more severely than murderers. Named for Nelson Rockefeller, who was governor at the time, the laws tied the hands of judges and mandated lengthy sentences for young offenders who often deserved a second chance. The laws, which were supposed to ensnare “kingpins,” have filled the prisons with drug addicts who would have been better dealt with through treatment programs. They also undermined faith in the fairness of the justice system by singling out poor and minority offenders while exempting wealthy ones.
New York has made incremental changes in laws in recent years but has failed to restore judicial discretion. A sentencing commission appointed by Eliot Spitzer, the former New York governor, pretty much ducked the issue in an interim report issued last fall. But criminal justice advocates have higher hopes for Mr. Spitzer’s successor, David Paterson, who spoke out vigorously for Rockefeller reform as a state senator. He was arrested while demonstrating against the laws in 2002.
If Governor Paterson is looking for motivation to take on this issue, he can find it in a recent report from The Correctional Association of New York, a nonprofit group that monitors prison conditions. According to the report, New York is currently paying $500 million a year to house its drug offenders....
Many of these people are clearly addicts who would benefit from treatment. But the mandatory sentencing guidelines limit the courts’ ability to choose the treatment option. It is long past time for New York to overturn these laws and to return judicial discretion. Governor Paterson, who can cite chapter and verse on this issue, should to take the lead in this important fight.
The "recent report" referenced in this editorial may be this this document from the The Correctional Association of New York. This document clearly indicates its perspective from its title, "Say NO to 35 Years of Injustice: Policy Paper Urging New York State Leaders To Repeal The Rockefeller Drug Laws."
On Judge Nancy Gertner as blogger
Thanks to How Appealing, I discovered this Boston Globe article discussing federal judge Nancy Gertner's recent blogging Slate's Convictions blog. (Of course, regular readers know that Judge Gertner's many provocative and thoughtful sentencing opinions have long made great blog fodder.) Here are a few interesting snippets from the Globe article:
Gertner appears to be the only judge in Massachusetts who shares her unfiltered legal views in the blogosphere, according to officials in the federal and state judiciary. A favorite of the state's defense bar and plaintiffs' attorneys, and the bête noire of some in law enforcement, she is also the only jurist among nearly two dozen contributors to what Slate calls its "blogging destination for smart legal conversation and commentary."...
For the past nine years, she has also taught two courses on sentencing, one a semester, at Yale Law School, her alma mater, where she shares her insights in her characteristically chatty manner. So blogging, she says, is not a radical departure. "I saw this as the new media version of what I've always been doing," the former criminal defense lawyer said recently at her office at the John Joseph Moakley Courthouse. "If this is where people are getting information, this is where we have to be."
Not everyone agrees. Bruce M. Selya, a senior judge on the Court of Appeals for the First Circuit, which reviews cases from Gertner's court, said he respects her and is sure she has thought out the potential ramifications of blogging. But he would never do it. "I think it would be a great strain on me to be careful not to say anything that could come back and make it seem like I prejudged a matter when it actually came before me," said Selya....
Gertner says judges are too often silent on issues they should publicly address, such as how federal sentencing guidelines have led to what she and other jurists consider unreasonably long prison terms for nonviolent drug offenders. Judges must also do a better job explaining why the judicial code forbids them from discussing cases, she said, because their silence after controversial rulings is misread as arrogance or cowardice.
May 26, 2008
Can Congress help move the double-condemned to the front of the execution line?
A helpful reader pointed me to this interesting local story from the Washington Post, headlined "Two Death Sentences In '88 Fairfax Killings." Here are snippets:
A Fairfax County judge yesterday handed Alfredo R. Prieto two death sentences in the slayings of a young couple 20 years ago, saying he could not fathom "the desperation, horror and sheer terror" Prieto inflicted on them in a field near Reston. "On the night you executed them," Fairfax Circuit Court Judge Randy I. Bellows told Prieto, "you turned the final moments of their life into what could be described as a living hell."
Prieto, 42, was convicted in February of the rape and murder of Rachael A. Raver and the murder of Warren H. Fulton III, both 22, in December 1988.... Prieto is on death row in California for the 1990 rape and killing of 15-year-old Yvette Woodruff in Ontario, Calif. As a result of his incarceration there, his DNA was entered into a nationwide DNA data bank. In 2005, that data bank provided a hit out of the blue on the DNA left at the scene of Raver's and Fulton's slayings near Hunter Mill Road on Dec. 4, 1988. Prieto is suspected in two other slayings in Arlington and Prince William counties.
Former Fairfax commonwealth's attorney Robert F. Horan Jr., who retired in the fall but stayed with the Fairfax case, sought Prieto's extradition to Virginia, despite the California death sentence, because Prieto's appeals were moving slowly and in 2005 were expected to take 10 more years. Horan obtained two murder indictments against Prieto in November 2005, and California agreed to send him to Virginia in April 2006....
In addition, prosecutors in Arlington obtained a murder indictment against him, saying he was linked by DNA to a May 1988 rape-murder. The details of the slaying of Veronica "Tina" Jefferson, 24, were used in the sentencing phase of the Fairfax case to help persuade the jury to impose the death sentence. Arlington prosecutors said yesterday that they still are planning to try Prieto in September.
Prince William prosecutors said Prieto is a suspect in the September 1989 slaying of Manuel F. Sermeno, whose body was found in a burning car near Interstate 95. But with three death sentences imposed, prosecutors there are unlikely to try Prieto....
Prosecuting Prieto in Fairfax cost taxpayers about $700,000, court records show.... State law required Bellows to set an execution date, which he did for Oct. 3. But he immediately suspended that date pending post-trial motions, which will be followed by appeals to the Virginia Supreme Court and then to the federal courts. Horan said the process could be over in five years.
Two decades after Prieto's horrible murders and millions of tax dollars later, apparently it is still going to take another five years and a lot more tax-payer dollars before Prieto will be facing a serious execution date.
Many concerns and ideas might be taken away from this sad story, but I am wondering whether Congress could somehow devise a way to ensure that defendants like Prieto condemned to death by two states are subject to some form of expedited appeals process. Though I am not sure Congress could readily devise an efficient way to "consolidate and expedite" Prieto's various federal appeals, stories like this confirm my instinct (as set for in some prior posts set out below) that Congress should be mush more actively involved in helping states administer the death penalty.
Some related posts:
May 25, 2008
Japanese working on IT approach to sentencing consistency
Ahead of the introduction of the lay judge system, which will start in May 2009, the Supreme Court set up in April a database in which sentences handed down in past cases can be looked up using key words. Under the lay judge system, the opinion of members of the public will be reflected not only on the question of guilt, but also on the severity of sentences.
To avoid major sentencing discrepancies for similar cases, the Supreme Court has created a database of past criminal case rulings and developed a search system, providing lay judges with a means to refer to past cases. The Supreme Court has set up terminals linked to the database at district courts and their branches nationwide.
Under the system, a judge handing down a ruling in a case subject to the lay judge system will be able to enter information on the relevant case in more than 10 categories, such as the crime committed, the weapon used, the harm caused to the victim, whether there were accomplices, the extent to which the suspect expressed regret and the emotional aggrievement of the victim.
Currently, the details of more than 100 cases have been collected so far, and information on more than 3,000 cases is expected to have been inputted by May 2009. By entering several search terms on the terminal, it is possible to call up a list of sentences imposed in similar cases. For example, in the case of a street robbery resulting in injury, if a user enters the key words "street" and "robbery," a list of similar cases will appear on the terminal....
By looking through such a list, lay judges can easily compare the impact each kind of situation has had on sentencing. The sentences of similar cases in the past can also be presented in graphic form as a bar chart. Under the lay judge system, professional judges will print out such lists or charts and show them to lay judges, while the legal teams of both sides also will be allowed to use the search system, according to the Supreme Court.
Judging, politics, sentencing and elections
Adam Liptak has this effective piece in today's New York Times headlined "Rendering Justice, With One Eye on Re-Election." Here are some highlights that should especially interest sentencing fans:
The question of how best to select judges has baffled lawyers and political scientists for centuries, but in the United States most states have made their choice in favor of popular election. The tradition goes back to Jacksonian populism, and supporters say it has the advantage of making judges accountable to the will of the people. A judge who makes a series of unpopular decisions can be challenged in an election and removed from the bench.
“If you want judges to be responsive to public opinion, then having elected judges is the way to do that,” said Sean Parnell, the president of the Center for Competitive Politics, an advocacy group that opposes most campaign finance regulation.
Nationwide, 87 percent of all state court judges face elections, and 39 states elect at least some of their judges, according to the National Center for State Courts. In the rest of the world, the usual selection methods emphasize technical skill and insulate judges from the popular will, tilting in the direction of independence. The most common methods of judicial selection abroad are appointment by an executive branch official, which is how federal judges in the United States are chosen, and a sort of civil service made up of career professionals....
There is reason to think, though, that the idea of popular control of the government associated with President Andrew Jackson is an illusion when it comes to judges. Some political scientists say voters do not have anything near enough information to make sensible choices, in part because most judicial races rarely receive news coverage. When voters do have information, these experts say, it is often from sensational or misleading television advertisements.
“You don’t get popular control out of this,” said Steven E. Schier, a professor of political science at Carleton College in Minnesota. “When you vote with no information, you get the illusion of control. The overwhelming norm is no to low information.”
Still, judges often alter their behavior as elections approach. A study in Pennsylvania by Gregory A. Huber and Sanford C. Gordon found that “all judges, even the most punitive, increase their sentences as re-election nears,” resulting in some 2,700 years of additional prison time, or 6 percent of total prison time, in aggravated assault, rape and robbery sentences over a 10-year period.
Since 2008 is an election year, the linked study perhaps ought to be foremost in the mind of state lawyers trying to figure out how quickly or slowly to move a case along. In addition, as suggested in this Linda Greenhouse NY Times article about the lack of 5-4 rulings by the Supreme Court so far this Term, there is reason to speculate that appointed judges also are impacted by election cycles:
The court’s modulated tone may also stem from the fact that this is an election year. Lee Epstein, a political scientist and law professor at Northwestern University, said that political scientists had long observed an “election effect” on the court that results in more consensus and fewer 5-to-4 decisions during an election year than in the preceding term. “Of course, lots of things could explain this, but the pattern is pretty interesting,” Ms. Epstein said in an e-mail exchange, adding that the justices “probably don’t want to provoke controversy, or become an issue, during the election — especially an election with a highly uncertain outcome.”