August 12, 2008
"You can't handle the truth" ... about prison overcrowding
This AP article from Oklahoma, headlined "Speaker denies requests for prison studies," makes me think of the great scene from "A Few Good Men" in which Jack Nicholson's character famously rebukes an effort by Tom Crusie's character to get at the truth. Here are snippets from the article:
With an annual budget approaching half a billion dollars and a population of more than 25,000 inmates, some lawmakers want to take a closer look at the state's prison system. But all six of the interim studies lawmakers requested to examine the issue were denied by House Speaker Chris Benge. Such studies, held between sessions of the Legislature, generally involve expert presentations and help lawmakers craft legislation. Some studies approved this year include the possibility of banning cell phones while driving and another on preserving nuclear families....
"Overcrowding is serious in that they've made longer prison sentences but not supported it financially," said Sgt. Randy Lopez, a guard at the Oklahoma State Penitentiary in McAlester. "If you're going to lock everybody up for everything, you've got to pay for it." With staffing shortages leading to many prison guards working two or three double shifts each week, the situation is a ticking time bomb, Lopez said.
August 11, 2008
"Cruel and Unequal Punishment"
The title of this post is the title of this new piece on SSRN from Nita Farahany. Here is the interesting abstract:
This article argues Atkins and its progeny of categorical exemptions to the death penalty create and new and as of yet undiscovered interaction between the Eighth and the Fourteenth Amendment of the U.S. Constitution. The United States Supreme Court, the legal academy and commentators have failed to consider the relationship between the Cruel and Unusual Punishments Clause and the Equal Protection Clause that the Court's new Eighth Amendment jurisprudence demands. This article puts forth a new synthesis of these two clauses, and demonstrates how the Court's new Eighth Amendment jurisprudence has remarkable Fourteenth Amendment implications. To see the point in practice, one need only consider two criminal defendants: the first was mentally retarded from birth; the second suffered a traumatic brain injury at the age of 22; and both have identical cognitive, behavioral, and adaptive impairments. Under state statutes cited approvingly in Atkins and others enacted since, the first defendant cannot be executed, but the second one can. This seems wrong on its face, but to understand why, it is necessary to explore the interaction of the Eighth and Fourteenth Amendments. The doctrinal shift in Atkins has profoundly altered that interaction, and a new synthesis is required.
Part I analyzes the Supreme Court's Eighth Amendment proportionality analysis from its inception in punishment-to-crime cases through its more recent punishment-to-culpability cases,revealing the abandonment of critical elements of earlier proportionality analysis in its new punishment-to-culpability cases. Part II reviews the legislative enactments promulgated and sustained in response to Atkins, and demonstrates a dual failure in Atkins, which paved the pathway for a new Eighth and Fourteenth Amendment interaction. Part III demonstrates, by example, medical conditions with nearly identical clinical manifestations as the medically defined category mentally retarded, but that are excluded from legal definitions of mental retardation adopted pursuant to Atkins. The striking similarity between the conditions discussed in Part III and the medically defined category mentally retarded make plain the arbitrariness of an Eighth Amendment fundamental right that turns on categorical exemptions. Finally, Part IV explains how the legislative schemes at issue violate the Equal Protection Clause of the Fourteenth Amendment, and how categorical exemptions to the Eighth Amendment create this new interaction.
New policy paper on reducing recidivism
Today a kind reader sent me this link to a new policy paper from The Progressive Policy Institute, titled "Stop Revolving-Door Justice: How Corrections Systems Can Reduce Recidivism." Here is part of the start of the paper:
While criminals are locked up, the system does too little to prepare them to be reintegrated into their communities as productive, law-abiding citizens. And it fails to effectively supervise people on probation and parole, even though their propensity to commit more crimes is well known.
The escalating crime rate among discharged prisoners also highlights a basic defect in conservatives’ reflexively punitive approach to law enforcement. Their disdain for prisoner rehabilitation guarantees that most offenders will simply be dumped back into the communities they came from, without the skills, tools and incentives they need to change their lives. In their zeal to punish the wicked, many conservatives have lost sight of public safety.
Progressives should not shy from tough sentences for cold-blooded predators and drug profiteers, even if that means high incarceration rates. At the same time, however, they should insist that the U.S. corrections system be tasked with preventing crime as well as punishing it after the fact. In practice, this means that everyone involved in corrections — wardens, sheriffs, parole officers, and probation supervisors — must be held responsible for reducing recidivism rates.
USSC proposes latest priorities and requests public comments
The US Sentencing Commission on its website has now posted here its "Federal Register Notice of proposed priorities and request for public comment." The USSC's homepage explains that as "part of its statutory authority and responsibility to analyze sentencing issues, including operation of the federal sentencing guidelines, ... the Commission is seeking comment on possible priority policy issues for the amendment cycle ending May 1, 2009." The USSC's notice says that "public comment should be received on or before September 8, 2008."
The notice also lists an intriguing set of "tentative priorities," which include:
- "a study of statutory mandatory minimum penalties";
- "consideration of alternatives to incarceration";
- a "multi-year study of the definition of 'crime of violence' used in both statutes and guidelines"
I hope readers will use the comments to get the public comments that the USSC seeks off to a running start.
Catching up with some notable headlines
I am a bit overwhelmed trying to catch up with various sentencing stories after being off-line most of the last two weeks. For example, all these headlines from recent news stories caught my eye:
- From the Atlanta Journal Constitution here, "Man used jail phone to plan more mortgage fraud"
- From the Chronicle of Higher Education here, "Congress Bans Pell Grants for Sex Offenders"
- From the Erie Times-News here, "Drug dealer earns reduced sentence for rehabilitation"
- From the Los Angeles Times here, "State pays millions for contract psychologists to keep up with Jessica's Law"
- From the Rutland Herald here, "Prosecutors oppose long mandatory sentences"
- From the Salt Lake Tribune here, "Sentencing Commission seeks options for prosecuting teens who trade nude photos over cell phones"
- From the Schenectady Gazette here, "Judge stiffening gun crime sentences"
- From the Toronto Star here, "Pentagon rejected 10-year sentence for bin Laden aide"
What were the biggest (or most blogworthy) sentencing stories while I was away?
Though I was only on-line a few times while away, thanks to terrific guest bloggers I was able to keep up with major sentencing developments by reading my own blog. The story that was most dynamic and dramatic during my time away was the debate (and legal appeals) concerning Texas's (ultimately successful) efforts to execute Jose Medellin (basics here and here). But the story I find most interesting is the surprising decision by a military commission to sentence Salim Hamdan, the Yemeni national who was Osama Bin Laden’s driver, to only 66 months following his conviction on charges of providing support to terrorism.
The fact that Hamdan received such a relatively short sentence — which is years shorter than the average sentence given to crack defendants in federal courts — provides an outcome-specific irony to all the legal and political wrangling over military tribunals. In addition, the fact that Hamdan was sentenced by a jury, rather than by a judge (as per standard military justice procedure), puts an interesting twist on the years of post-Blakely debate concerning Sixth Amendment jury trial rights.
Though the guest-bloggers did a great job covering so many sentencing stories, I am sure some notable sentencing tid-bits have slipped below the radar. Readers are encourage to use the comments or e-mail to spotlight stories from recent weeks that merit more attention.
August 10, 2008
I'm back, behind and grateful...
for the extraordinary effort and the outstanding work of the guest bloggers. The reviews appear to be positive, at least based on these comments. And, because my whole family enjoyed my time away from the computer, I am pretty confident that I will arrange for a return visit by these guests (and perhaps others) before long.
Because I have e-piles of of e-mail to get through (and also a new school year's class only a week away), blogging thus may be a bit light the next few days. But I am already looking forward to reviewing (and adding comments) on some of the big doings while I was away.