August 23, 2008
Senator Biden, crime and punishment
Now that Barack Obama has finally made his VP choice official, I am starting to think about what this decision might mean for what a President Obama would do on the crime and punishment front. Jeralyn at TalkLeft is all over this topic already with this post that is both sharp and discouraging:
Obama and Biden are going to run a tired, decades-old but tried and true "tough on crime" campaign. I expected it with Obama, as his views on crime were never particularly progressive, but now with Biden, it's enshrined in cement.
I understand and appreciate that not all voters -- and not even all readers of this site -- agree with me that America, Prison Nation, is one of the worst failures of our Government and our democracy. It's regressive and an embarrassment.
I found these comments from Jeralyn a bit jarring now because Jeralyn has not consistently criticized the Clintons on this front, and because Senator Biden strikes me as just playing the old Clintonian "let's not be accused of being soft" game in the arena of crime and punishment. Still, I think Jeralyn is right to lament that the crime and punishment arena is just another in which Senator Biden does not represent a new kind of politics.
Still, as detailed in prior posts listed below, Senator Biden has been ahead of the curve a bit on some important sentencing discussions in recent times:
- From July 2007: Senator Biden picking up Scooter Libby and Victor Rita parallels
I am interested to hear from the informed and insightful readers of this blog what they think of the Biden pick.
UPDATE: Scott has some important and effective insights over at Simple Justice in this post, titled "Will "Tough on Crime" Still be the Only Choice?"
August 22, 2008
Should a naked jogging priest be labelled a sex offender?
Thanks to this post by Corey Yung, I came across this commentary piece, headlined "The dilution of a sex offender: Making the term apply to non-sex-offenders a scary proposition." Here is a section of the piece that prmopts the question in the title of this post:
This week, a court declined to downgrade the conviction of Rev. Robert Whipkey, 53, to a petty offense of public indecency. Whipkey, a Catholic priest who has been on administrative leave from the archdiocese since his arrest, was charged with indecent exposure after being caught running naked around the Frederick High School track last June.
It was 4:30 a.m. The witness was an off-duty police officer, who followed the man home, and confronted him there.
This week, a judge ruled that the conviction was constitutional. "Given the nature of sex offenders and the risk they pose to the community, the court finds that, for those who knowingly expose themselves to the public, it is reasonable that they are given a higher level of sanctions and registrations," Weld County Judge Timothy Kerns said.
Whipkey will be sentenced in October. He faces possible jail time and registering as a sex offender.
Big crack arguments before Eleventh Circuit
Thanks to law.com, we can now all read this effective article from the Fulton County Daily Report headlined "Crack Resentencing Controversy Comes Before 11th Circuit." Here is how the piece starts:
Today, two of the most controversial issues in sentencing law -- the length of sentences for crack cocaine offenders and judges' ability to go outside the federal sentencing guidelines -- will intersect in arguments at a federal appeals court panel sitting in Atlanta.
The five cases from the Southern District of Florida, consolidated for oral argument at the 11th Circuit, have the potential to affect many other cases throughout Florida, Georgia and Alabama. The appellate chief at the U.S. Attorney's Office in Atlanta, Amy L. Weil, said she'd seen about a dozen motions by defendants in the Northern District of Georgia alone that raise the same issue.
In each case before the court today the defendant was convicted of a federal crack cocaine offense and sentenced before more lenient crack cocaine sentencing guidelines went into effect in November. Each is trying to get a new sentence based on the change in the guidelines but has been stymied because prosecutors argue they were sentenced as career offenders.
August 22, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (2) | TrackBack
Sex in the (host) city
This story from ABC News captures one of many reasons why I am often so troubled that so many politicians are so eager to demonize so many sex offenders without being tough on their own:
Prostitution in Denver and Minneapolis will spike during the political conventions held there in the coming weeks, experts say, and online ads indicate sex workers are preparing themselves....
"We know it's going to rise," said Vednita Carter of Breaking Free, a Denver-based nonprofit which helps women and girls involved in prostitution and sex trafficking. "That's what we've been hearing from women who are involved in that life."
Crowds like those coming for the political conventions will inevitably mean a boost for the sex industry, said former prostitute Carol Leigh, a spokeswoman for the San Francisco-based sex workers-rights group Call Off Your Old Tired Ethics (COYOTE)....
In Denver, Breaking Free's Carter said her group is concerned that the boom in sex business they are expecting will bring harm to underaged girls who have been coerced or forced to sell sexual services. "There's going to be younger girls who are going to be involved in it," she said. "I think there might be some [physical] harm that might come. Usually the young girls have pimps. I think they're going to be real hard-core on them during the convention" by "demanding higher quotas," Carter explained.
August 21, 2008
Split California Supreme Court ruling on parole consideration
As detailed in this Los Angeles Times article, the "California Supreme Court made it easier today for prison inmates to win parole over a governor's objections. In a 4-3 vote, the state high court said the brutality of a convict's crime may not be enough to justify a determination that a prisoner would be a danger to the public." The full ruling is available at this link, and here is a key paragraph from the majority's analysis (emphasis in original):
In sum, the Board or the Governor may base a denial-of-parole decision upon the circumstances of the offense, or upon other immutable facts such as an inmate’s criminal history, but some evidence will support such reliance only if those facts support the ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety. (Regs., § 2281, subd. (a).) Accordingly, the relevant inquiry for a reviewing court is not merely whether an inmate’s crime was especially callous, or shockingly vicious or lethal, but whether the identified facts are probative to the central issue of current dangerousness when considered in light of the full record before the Board or the Governor.
Iowa prosecutors trying to ensure teens practice safe cell
This story from Iowa about a teen being prosecuted for modern cyber-locker-room talk is remarkable for many reasons. Here are just some of the highlights:
High school senior Andy Dougherty sent a 17-year-old buddy a 10-second cell phone video that showed Dougherty with his pants down, fooling around with his teenage girlfriend. The prosecutor in Woodbury County charged Dougherty, 18, with a sex crime: telephone dissemination of obscene material to a minor.
The teenager pleaded guilty to a lesser offense this week, but the implications of the original charge have prompted some questions about the state's sex offender laws and may serve as a warning to teens. If he had been convicted of the sex crime, Dougherty could have spent up to two years in jail and 10 years on the sex offender registry. He wouldn't have been able to live in any dorm at any state university in Iowa because registered sex offenders are prohibited. And for the rest of his life, he couldn't live within 2,000 feet of a K-12 school or child care center.
Dougherty and his parents have lived with the dread of those possibilities for the past six months. "It's destroying our family for what amounts to a high school prank," the teen's father, Jim Dougherty, who drained $50,000 of his retirement savings to pay for legal fees to defend his son, said last week....
Andy Dougherty was 17 and his then-girlfriend was 16 when they made the short video that prosecutors said contained "a sex act," Jim Dougherty said. Andy later forwarded it to a 17-year-old friend because he was seeking revenge on the girl for spreading rumors about him, his father said. The video spread like wildfire through the Sioux City area.
"Yes, he deserves punishment, but he didn't do anything wrong that would make him deserve being on the sex offender registry," said Jim Dougherty, an electrical engineer. "He knew what he was doing was mean, but he had no clue of the legal ramifications." Jim Dougherty is relieved that the prosecutor, Woodbury County Attorney Patrick Jennings, agreed to a plea agreement. Under the deal, Andy Dougherty pleaded guilty to three counts of third-degree harassment. He must spend 20 days in jail next summer, do 100 hours of community service and pay $300 in fines....
"I keep thinking: How many other high school kids are forwarding e-mails or texting pictures that if prosecuted would nail them on the sex offender registry?" said state Rep. Christopher Rants of Sioux City, the Republican leader in the Iowa House. Rants said what Andy Dougherty did was wrong, but the punishment allowed by current law is too harsh for teenagers making "this particular stupid mistake."...
Rants isn't the only legislative leader with an interest in the case. House Majority Leader Kevin McCarthy, a Des Moines Democrat, was listed in court documents as one of the lawyers for the Doughertys. McCarthy said he doesn’t think the laws need to be amended. “I support getting tougher on sex offenders and, as a former prosecutor, I believe that the prosecutorial edict of seeking justice, not merely convictions, provides safeguards in the process of certain charges being appropriately matched to the underlying facts of a situation,” he said....
After listening to some basic facts of the Dougherty case, Ernie Allen, the president of the National Center for Missing & Exploited Children, said it's "fairly uncommon" for prosecutors to seek such tough punishment in cases of teens in dating relationships who created photos or video of sex acts.
Is education the best way to fight crime? And why aren't these topics linked more in political discourse?
Over at The Faculty Lounge, Dan Filler has this great new post titled "Education In A Crime Control Frame." Here are snippets:
A national organization called Fight Crime: Invest in Kids is pushing a new study showing that a ten percent increase in the number of high schoolers earning their degrees will cut 3,000 murders and 175,000 murders in the United States. And how do we spike those graduation rates? Bigger investments in pre-K programs, of course....
What's worth a closer look, however, is both the framing strategy, and the organization's success in enlisting law enforcement officials as advocates for preschool education funding. The framing of crime as a education issue, and education as a crime issue, are both intriguing.
Too frequently we see crime framed as a matter of individual flaws and failures. Admittedly, progressives are less inclined to view matters this way, but law enforcement officials — who are often battling for tougher criminal laws — often invoke this individualistic rhetoric to justify their support for harsh punishments. Whatever the empirical basis for believing that harsh punishment will deter crime, it's clear that the public cottons to more retributive explanations for tougher criminal law. And retributive explanations are grounded in some notion that crime is caused by moral depravity — rather than a lack of school funding.
On the flip side, we usually see education funding justified either as a fairness issue ("no child left behind") or a macroeconomic concern (we need educated citizens to compete in the world market). Framing education as a crime issue is savvy, because it does a better job of tapping into voter self interest....
This crime control frame ... suggests that education money will pay off for us. Pay for a poor kid to go to pre-K and you can avoid being assaulted!
I have long believed that folks from all political perspectives should see not just the policy justification for, but also the political virtues of, linking education policy/funding to crime policy/costs. Nevertheless, but for Fight Crime: Invest in Kids and a few other public-policy groups, I have seen precious few efforts by politicians to talk smartly about education/crime links and related funding realities. Indeed, as I noted in this recent post, when Reverend Rick Warren this past weekend asked both presidential candidates about the contrast between America's investment in education and in its prisons, apparently neither candidate siezed the opportunity to talk smartly about these issues.
Some related posts on Campaign 2008:
"The government’s argument that it honored its promises reeks of the lamp."
The title of this post is a sentence from an interesting Tenth Circuit opinion issued yesterday in US v. Villa-Vazquez, No. 07-3160 (10th Cir. Aug. 20, 2008) (available here). The Tenth Circuit in this case finds that federal prosecutors "blatantly violated its promises" under a plea agreement with the defendant. And, in addition to using this old-world phrase to describe the government's efforts to defend its behavior, the panel decision has these harsh words in the course of explaining its decision to remand for resentencing before a new judge:
Second, we recognize that resentencing before a new judge cannot truly make Mr. Villa-Vazquez whole. The new judge cannot be entirely insulated from the government’s misconduct. This reality makes that misconduct all the more reprehensible.
Yowsa, this is some pretty strong language to rebuke the actions of federal prosecutors in a criminal case. After reading the opinion, of course, readers can reach their own views about what adjectives were justified in this case.
Extended discussion of restitution by Second Circuit
Today in US v. Amato, No. 06-5600 (2d Cir. Aug. 21, 2008) (available here), the Second Circuit had occassion to discuss federal criminal restitution. Here is a snippet from the start of the opinion:
Restitution is a complex subject because civil and criminal restitution are somewhat different. The civil rule is often stated under the rubric of unjust enrichment: "A person who has been unjustly enriched at the expense of another is required to make restitution to the other." Restatement (First) of Restitution § 1 (1937). In the criminal law, victims' rights are generally the focus of restitution provisions, including those contained in the Mandatory Victims Restitution Act of 1996 (MVRA), the criminal statute with which we deal on this appeal. Its purpose is primarily to restore the victim to his or her prior state of well-being, and to that end to require federal "criminal defendants to pay full restitution to the identifiable victims of their crimes." S. Rep. No. 104-179, at 12-13 (1995).
Under the MVRA, restitution must be ordered without consideration of the defendant's economic circumstances. See 18 U.S.C. § 3664(f)(1)(A). Consequently, while going down the road to committing a crime may be as easy as the "descent to Avernus," the payment of restitution under the MVRA can be as hard as the return to view "etherial light" [footnote quoting Virgil's Aeneid omitted]. The question we must address is not whether the defendants are capable of making this payment but merely whether the items included in the restitution order fall within the scope of the MVRA, as well as whether the order was otherwise properly calculated.
Costs discussed in Maryland debate over death
As highlighted in this DPIC post, the Maryland Commission on Capital Punishment has begun hearing testimony from a variety of folks concerning the state's death penalty system. And, as detailed in this Washington Post article, earlier this week the discussion turned to capital costs:
The cost associated with prosecuting a case in Maryland in which the death penalty is imposed is on average $1.9 million more than the cost of a similar case in which capital punishment is not sought, a researcher told a state commission yesterday.
The analysis was embraced by death penalty opponents, but supporters of capital punishment, including two Maryland prosecutors, vigorously sought to discredit the study by the nonpartisan Washington-based Urban Institute. They argued that the methodology was flawed and cost assumptions greatly inflated.
Joseph Cassilly, the state's attorney for Harford County, said that the study was "so far off the mark as to be incomprehensible and useless" and that it contained "significant errors of math." Cassilly acknowledged that there are additional costs associated with a death-penalty case but said, "We're talking costs in the thousands of dollars, not in the millions of dollars."
Some related posts:
August 20, 2008
"Desert and the Eighth Amendment"
The title of this post is the title of this new paper from Professor Youngjae Lee available via SSRN. Here is the abstract:
What would a constitutional right based on desert look like? If "the people" believe that, say, child rapists should receive the death penalty, on what basis can one make an Eighth Amendment argument that says that "the people" got the desert question wrong? In order to answer this question, this Essay addresses a set of related questions, one step removed: What should be the significance of ordinary intuitions about what people deserve when criminal law scholars theorize about what people deserve? If a popular belief about a question of desert does not match up with conclusions arrived at through theorizing and reflections about desert, who should revise their views — the people or the theorists?
The answer, I suggest in this Essay, is twofold. First, statements about desert that fail to capture the core of ordinary moral intuitions cannot be ultimately successful. Second, it is a mistake to believe that answers to questions about desert can be simply read off public opinion surveys or inferred from laws passed by legislatures. The role of theories about desert is to take various particular convictions held by people about what people deserve and test them against broad principles, while warning against various sources of confusion and excess that frequently infect desert judgments, such as prejudice and vindictiveness. The relationship between desert theories and popular sentiments is thus quite complex, and we must be suspicious of simple assertions either in favor of dismissing theories as irrelevant or in favor of disregarding popular sentiments as base or irrational.
Tenth Circuit discusses loss, restitution and other white-collar issues of note
In a long opinion (108 pages!) covering lots of ground, the Tenth Circuit today in US v. Gallant, No. 07-1344 (10th Cir. Aug. 20, 2008) (available here), discusses a host of notable and important white-collar crime and sentencing issues. The sentencing discussion starts on page 58 of the slip opinion, and here is the court's summary of issues covered:
The government and all four defendants appeal aspects of the district court’s sentencing procedures and conclusions. The government’s primary argument is that the district court erred in calculating the amount of loss attributable to the defendants’ conduct for purposes of imposing an enhancement under § 2F1.1 of the Sentencing Guidelines. The defendants and the government also argue that the district court erred in imposing various other enhancements under the Guidelines. In addition, the government challenges the sentencing procedures employed by the district court and argues that the district court erred in failing to order restitution.
En banc proceedings and reasonableness review
A helpful reader informed me that the Third Circuit yesterday granted rehearing en banc in US v. Tomko (panel decision blogged here), a case in which a panel members had written at length about reasonableness when reviewing a probation sentence given to a white-collar defendant. The original Tomko opinion was handed down before the Supreme Court later provided additional guidance on reasonableness review in Gall and Kimbrough, but the decision to now grant rehearing en banc suggests that Gall and Kimbrough failed to resolve intra-circuit debates over Tomko.
Speaking of intra-circuit debates, it dawns on me that we are still awaiting at least two important en banc reasonableness rulings from other circuits:
- Way back in March, the Second Circuit heard en banc argument in Cavera, which raises the question of whether a federal judge can reasonably justify an above-guideline sentence based on the local conditions (basics blogged here).
- Back in June, the Sixth Circuit heard en banc argument in White, which deals with acquitted conduct enhancements (basics blogged here). (In White, I was part of an amicus team arguing, through a brief discussed here, that the presumption of reasonableness for within-guideline sentences should not readily apply in acquitted conduct cases.)
I also know that at least one other circuit also has an en banc reasonable case in its midst as a result of a post-Gall GVR, and I would not be surprised to learn of other like cases still in the pipeline.
As some circuit watchers know, the clerk turnover that takes place around this time of year can often lead to the issuance of long-awaited opinions. For this reason, I am hopeful that we will be seeing these reasonableness cases and others of interest in the pipeline before too long.
Do special procedures help preserve the US death penalty?
I just came across on SSRN this interesting-looking paper by William Berry, titled "American Procedural Exceptionalism: A Deterrent or Catalyst for Death Penalty Abolition?". Here is the abstract:
This article offers a new theory to explain the persistence of the death penalty in the United States at a time when most western nations have abolished it. Contrary to cultural explanations that have been advanced by other scholars, this piece hypothesizes that the retention is best explained by "American procedural exceptionalism," defined as the unique American belief in the efficacy and fairness of its legal process. This American exceptionalism of process validates the expression of the impulse toward retribution commonly found in western nations. In other words, the perceived fairness of the process affirms the retributive notion that the execution of a murderer achieves justice for society.
When the American death penalty process is shown to be unjust, arbitrary, or discriminatory in its administration, the defect in the process serves as a check on the retributive impulse. The result is a move to halt (or reduce) the use of the death penalty. Thus, according to the theory, the retention and continued administration of the death penalty in the United States rests upon a belief in the fairness of the American judicial process in capital punishment cases.
August 19, 2008
Fifth Circuit affirms, after Gall GVR, a probation sentence in child porn downloading case
A helpful reader sent along this head's up about an important new ruling released today by the Fifth Circuit:
I thought you'd be interested in the opinion out of the Fifth Circuit in US v. Duhon, No. 05-30387 (5th Cir. Aug. 18, 2008) (available here).
It's another child-porn case. The defendant had received probation from the district court. The Fifth Circuit had initially reversed. (Your prior coverage is here). The Supreme Court later vacated and remanded the case in light of Gall. In the newly issued opinion, the Fifth Circuit affirmed the sentence. Whereas the initial Duhon opinion was part of the trend of cases reversing below Guideline sentences, the new opinion shows that Gall has changed the way courts review sentences. Among other interesting issues the court covers is alternative sentencing and co-defendant sentencing disparity -- both issues this blog has talked about recently. I thought you and your readers might be interested.
Indeed I am interested, not only in the Fifth Circuit's revised work, but also in reader reactions.
Two for Tuesday from the Seventh Circuit on sentencing
The Seventh Circuit has handed down two notable and lengthy sentencing rulings today:
- US v. Carter, No. 07-2438 (7th Cir. Aug. 19, 2008) (available here)
- US v. Clark, No. 07-1297 (7th Cir. Aug. 19, 2008) (available here)
Though both rulings are meaty and important, the Carter case is the must-read of the pair. In Carter, the panel affirm a below-guideline sentence of 24 months' imprisonment as reasonable despite an applicable advisory guidelines range of 87 to 108 months’ imprisonment. Here are the panel's concluding sentiments in Carter:
The record makes clear that the district court did not select the sentence arbitrarily, base the sentence on impermissible factors, fail to consider pertinent section 3553(a) factors or give an unreasonable amount of weight to any pertinent factor. Its explanation for its sentence was sufficient to allow for meaningful appellate review and to promote the perception of fair sentencing and its reasoning adequately justified the extent of the variance from the advisory guidelines range. See Omole, 523 F.3d at 697; see also Gall, 128 S. Ct. at 597. We might have adhered to the guidelines or imposed a somewhat harsher sentence had we been sitting as district judges. See Gall, 128 S. Ct. at 597. Our review is not de novo, however. Our authority is simply to determine if the sentence is legal and, in the circumstances of the case, reasonable in light of the statutory mandate contained in 18 U.S.C. § 3553(a). Given those limitations on our authority, the sentence of the district court must stand.
Jail talk around the blogosphere
Folks who follow jail issues will want to check out these recent posts on jail issues come from some of my favorite blogs:
- From Grits for Breakfast here, "Dallas County scrounging for 'loose change' on jail costs but ignores potential savings from jailing fewer people"
- From TalkLeft here, "An Enlightented Crime Policy: The Best Jail is an Empty One"
Eleventh Circuit panel splits over whether Kimbrough now allows consideration of fast-track disparity
A split decision today from the Eleventh Circuit in US v. Vega-Castillo, No. 07-12141 (11th Cir. Aug. 19, 2008) (available here), spotlights an important post-Kimbrough issue that arguably has already created a circuit split. The first two paragraphs of the majority's per curiam opinion sets up the issue effectively:
Appellant Victor Gonzalo Vega-Castillo appeals his 70-month sentence following a plea of guilty to reentering the United States illegally after having been deported or removed, in violation of 8 U.S.C. § 1326(a)(1), (b)(2). Before the district court imposed his sentence, Vega-Castillo asked the district court to vary downward from his applicable sentencing range of 70 to 87 months imprisonment based on the fact that the district in which he was indicted on the present charge — the Northern District of Georgia — did not employ an early disposition program, and this resulted in an unwarranted sentencing disparity that should be considered pursuant to 18 U.S.C. § 3553(a)(6).
On appeal, Vega-Castillo requests that this court remand his case to the district court for resentencing and order the district court “to consider the disparity caused by nationally disparate ‘fast-track’ sentencing when considering the factors in 18 U.S.C. § 3553(a).” Vega-Castillo recognizes that we previously held in United States v. Castro, 455 F.3d 1249, 1253 (11th Cir. 2006) that “section 3553(a)(6) does not require the district court to depart based on the availability of the [fast-track] departure in only some districts,” but argues that this decision has been overruled by Kimbrough v. United States, 128 S. Ct. 558 (2007).
The issue of fast-track disparity and post-Booker analysis is, in my mind, even harder than crack/powder disparity issues. I am not surprised that this issue has split this Eleventh Circuit panel, though I am surprised that only a few circuits have weighed in on this issue in the nine months since Kimbrough came down. Even though I suspect the Supreme Court is now very tired of post-Booker debates, the Justices may have to take up fast-track disparity issues sooner or later.
Interesting sentencing data coming from Nevada study
This article from the Carson Times reports on a sentencing study coming from Nevada that includes some notable and perhaps surprising findings:
About 12.5 percent of felony defendants sentenced in Nevada in 2007 received punishments that fell outside the limits set by law, according to a university study presented Monday to a commission evaluating sentencing practices in the state.
Of the cases studied that year, 1,364 defendants received a minimum or maximum sentence that went beyond what was allowed by statute, said Matt Leone, a researcher with the Grant Sawyer Center for Justice Studies at the University of Nevada, Reno. "There were folks being sentenced on a one-to-five to a maximum that exceeded five years," Leone told members of the Advisory Commission on the Administration of Justice, an interim legislative panel. "They were given one-to-10 when the statute said one-to-five."...
The UNR group conducted its study to review the sentencing practices since 1995, when the Legislature passed laws to ensure that inmates paid appropriate punishments.
Besides the apparent sentencing disparity, the group also found that men were more likely to receive tougher punishments than women, and blacks received higher minimum and maximum sentences than whites and Hispanic offenders. But researchers said when they looked deeper into the cases, they found that the tougher punishments for men and blacks were related to a list of other factors, including having a criminal history, using a weapon, tending to use drugs and alcohol, committing more crimes against people and being more likely to have a history of violence.
The report also said that Nevada has one of the lowest recidivism rates in the country: it came in 10th out of 40 states studied. The rate was based on a study that questioned whether an offender committed another crime within three years of being released.
The study also found a large disparity among judges over whether a defendant is sent to prison or receives probation. The highest prison-sentencing rate was 58 percent, while the lowest was 23 percent of the defendants incarcerated.
These last two findings spark a concern I have long had about efforts to reduce sentencing disparity, namely the relationship between sentencing disparity and recidivism. Would there be and should there be a huge concern about reducing sentencing disparity if it turned out that disparate sentencing patterns correlated with reduce recidivism rates?
NY Times editorial on juves in adult prison
Today's New York Times has this editorial, headlined "Some Progress on Kids and Jails." Here is how it starts:
The number of minors being held in adult jails and prisons in this country has dropped substantially, according to a new study based on federal data. That’s welcome news. Criminologists warn that juvenile offenders who are thrown in with adult prisoners are exposed to social pressures and develop personal contacts that make it far more likely that they will become career criminals than those held in juvenile facilities.
The study, by the National Council on Crime and Delinquency, a California-based nonprofit, shows that the number of minors being held in adult facilities has decreased by 38 percent since 1999. Because of reductions in juvenile crime and arrests, among other factors, the number of children held in juvenile facilities also fell.
Congress can consolidate these gains by using aid to impose a clear federal standard: To qualify for federal juvenile-justice funds, states should have to certify that people under 18 are not being jailed as adults, except in cases involving heinous crimes like rape and murder.
Sounds like a good idea to me.
August 18, 2008
Another notable sentencing opinion in a child porn downloading case
I mentioned in this recent post that I have noticed an extraordinary amount of variation in charging, bargaining and sentencing realities in child porn downloading cases. And today I received a copy of a recent sentencing opinion in such a case that provides another example of the challenges these cases present.
The opinion in US v. Ontiveros, No. 07-CR-333 (E.D. Wisc. July 24, 2008) (available for download below), which explains the court's reasons for giving a sentence of five years' imprisonment rather than a much higher sentence recommended by guidelines, has lots of notable passages. I found especially interesting the discussion of the defendant's offense behavior:
Ontiveros, like many who have accessed child pornography via their computer, seems not to have initially appreciated the magnitude of the offense he was committing or the risk that he would be caught. The manner in which computer technology and high speed internet access have made such material readily available in the presumed privacy of the home has removed several substantial impediments to seeking out such material that previously existed. No longer must a person travel to the seedy side of town, walk into a dirty book store, make a request for the sordid material to another person from whom one’s identity could not be readily concealed, and pay for it. The easy availability of the material at no cost with the click of a mouse, while at the same time preserving one’s anonymity, leaves little but one’s natural aversion to depictions of the abuse and degradation of children to stand in the way of obtaining it. And as the popular culture has become more and more saturated with a debased concept of human sexuality, this natural aversion in many people seems to have grown weaker.
A further factor seems to be the lack of appreciation of the harm that simply viewing such material does to children. In some respects, the internet seems analogous to a huge file cabinet containing an almost limitless number of documents and other forms of information. Under this view, accessing child pornography can be rationalized as simply pulling out a drawer and simply looking at photo that someone else took in the past. As long as the individual who accesses the pornography is not himself abusing children to produce it, selling it in order to profit from it, or paying for it so as to stimulate demand for it, he can tell himself that he has done no harm to the children depicted. This line of reasoning, of course, is directly contrary to Congress’ finding, noted above, that “[e]very instance of viewing images of child pornography represents a renewed violation of the privacy of the victims and a repetition of their abuse.” Pub. L. 109-248, Title V, § 501, July 27, 2006, 120 Stat. 623. And it also ignores the fact that further demand for such material is fueled by those who seek it out and share it with others. But these harms are indirect and abstract, and thus often unappreciated or easily ignored. This is apparently why people who express shock at the idea that they would ever intentionally harm a child can engage in such behavior.
While these changes in technology and the culture, and the lack of appreciation of the harm done to children do not excuse the behavior, they do suggest an explanation for why people such as Ontiveros with no previous history of criminal or abusive conduct seem to be committing such crimes with increasing frequency. They also suggest that with the realization that such conduct is not anonymous, that it carries substantial penalties, and that even simply viewing it does substantial harm to children, first-time offenders such as Ontiveros are unlikely to repeat. Treatment directed to increasing such awareness can be provided within the sentence structure I have ordered.
Some related posts:
Seeking data sets on the SCOTUS criminal docket
Over at SCOTUSblog is this new post, headlined "ABA Review: The Supreme Court’s OT07 Criminal Docket." That post links to a previous SCOTUSblog review of the Justices' voting records during the 2007 October Term, and it also links to this terrific summary prepared by Professor Rory Little of all the Court's work last term in criminal cases.
Though these resources provide a fantastic overview of the Court's work in criminal cases over the last term, they have me wondering if anyone is assembling (or has assembled) any data on the Supreme Court's criminal docket over the past decade. When putting together a short piece complaining about the Supreme Court's tendency to consider on the merits too many death penalty cases (available at this link at SSRN), I was unable to locate any empirical inquiries or analysis of the Court's criminal docket.
If anyone is aware of any such data sets either in development or already available, I would be grateful for any lead or link or reference.
Some related posts:
- My (already dated) musings on the SCOTUS criminal docket
- Defense lawyers win: initial reflections on the SCOTUS term that was
- Brave New Justice and sentencing issues
- Looking ahead to SCOTUS docket dynamics
"Sentencing Children to Die in Prison"
The title of this post is the title of this piece authored by Marian Wright Edelman, President of the Children's Defense Fund, which now appears over at The Huffington Post. The post is mostly about the Equal Justice Initiative's report from last year titled "Cruel and Unusual: Sentencing 13- and 14-Year-Old Children to Die in Prison" (blogged here, overviewed here). Here are snippets from Edelman's commentary:
Ian Manuel was 13-years-old when he participated in a robbery attempt in Florida, leaving the victim with a nonfatal gunshot injury. Ian turned himself in to police, and his attorney told him he would receive a 15-year sentence if he pled guilty. Instead, he was sentenced to life in prison without parole.
Ian's is one of several stories told in the ... EJI study [which] found 73 cases in the United States where 13- and 14-year-olds have been sentenced to life without parole -- in other words, sentenced to die in prison....
The EJI study echoes and reinforces the findings of the Children's Defense Fund's Cradle to Prison Pipeline® report, our national call to action to prevent and divert children and youth from a trajectory that leads to marginalized lives, imprisonment and even premature death. EJI's work to draw attention to these children and its nationwide campaign to challenge and end these harsh sentences are valuable contributions to dismantling the Pipeline to Prison.
Interesting "loss" issue in Sixth Circuit case
The Sixth Circuit this morning has an interesting discussion of loss calculations within the federal guidelines in affirming a sentence in US v. Simpson, No. 07-5840 (6th Cir. Aug. 18, 2008) (available here). Here is how the Simpson opinion starts:
Defendant Harold Simpson appeals the sentence and order of restitution imposed for his crime of mail fraud. For several years, Simpson underreported payroll information for his businesses to his workers’ compensation insurance carriers. The district court concluded that the “loss” caused by this conduct was the amount of additional premiums that the insurance carriers would have charged had they been given accurate information. The court then used those figures to calculate Simpson’s Sentencing Guidelines range and the amount of restitution due to the carriers. On appeal, Simpson argues that the proper measure of loss was not the unpaid premiums, but the amount of money that the carriers actually paid on claims. This argument fails, however, because what Simpson took through his deceit was insurance coverage, and the fair market value of that coverage was the amount of the unpaid premiums. We therefore affirm the judgment of the district court.
Letting them out when sick or dying
This effective article from Alabama highlights one way that states are looking to reduce their prison populations:
Next month Alabama will start releasing sick or dying prison inmates, a move that state prison officials say immediately will start saving taxpayers millions of dollars.
Each sick or dying prisoner costs the state $60,000 to $65,000 in medical costs, and about 125 state inmates will be eligible for the furloughs that start on Sept. 1 said Prison Commissioner Richard Allen. But victims rights advocates say the program is so broad it will lead to dangerous criminals getting back on the streets and doesn't save any money because it only transfers the costs from one government agency to another.
There are about 25,000 inmates in Alabama prisons, and prisoners eligible for the program are 55 or older and have life-threatening illnesses -- none convicted of capital crimes and most sex crimes will be eligible, Allen said.
A Montgomery Advertiser review found 37 states have some program allowing for the early release of dying or infirm prisoners, according to state Department of Corrections policies. A Justice Department official said rising medical costs and mandatory sentencing guidelines that lock prisoners up for longer terms are the reasons so many states have implemented the furloughs, also called humanitarian paroles or compassionate releases. Capt. Ron McCuan, a health analyst with the National Institute of Corrections, a Justice Department agency, said state officials are looking for new ways to reduce health-care expenses....
Wyoming passed a law in March that went into effect July 1, said Belinda Brazzale, a spokeswoman for the prisons system. For a terminally ill inmate to be considered for release, he or she must have a life expectancy of 12 months or less.
Ohio prison system officials are looking to change the requirement that terminally ill inmates must have a life expectancy of 6 months or less before being considered, said Sara Andrews, superintendent of the Adult Parole Authority. Ohio has had a medical parole law on the books for more than 25 years. It was last updated in 1995. A bill pending in the state Legislature "would broaden the scope of release," she said.
Oklahoma's prisons system began "medical parole" in 2000. Since then about 135 inmates have been released, said Bob Mann, coordinator of clinical social work for the state's prisons system. There have only been "one or two inmates" returned to the prisons who were granted medical parole, Mann said.
North Carolina has about 39,000 inmates in its prison system, according to the agency's Web site. Department of Corrections officials are trying to determine how many of those inmates may be eligible for the medical furlough system, spokesman George Dudley said.
August 17, 2008
A good question about prison nation ... dodged
Though I did not have a chance to watch the forum at Saddleback Church put together last night by Reverend Rick Warren (which sounds as if it was quite interesting), I am pleased to learn that someone has finally asked the candidates about US incarceration rates. According to this post at TalkLeft, Rev. Warren "asked about the contrast between the investment America makes in its educational system and the investment it makes in its 'we're number one!' prison system."
According to the TalkLeft post, both candidates talked about education policy and avoided the "prison nation" part of the question. I suppose I am not surprised, but I am deeply disappointed. Especially with a religion-oriented crowd, this question presented a great opportunity for one or both of the candidates to discuss the need for our criminal justice system to put more faith in the possibility of human redemption. In addition, the question's justifiable suggestion of a zero-sum game in the local funding of prisons and schools, one or both of the candidates could and should have used this question to stress the need to shift tough-on-crime political attitudes toward smart-on-crime policy solutions.
Because I did not see the Saddleback forum, I cannot comment further on the specifics of the question and the (non) answers. But I do want to complement Rev. Warren for asking the right kind of public policy question and question the failure of either candidate to provide the right kind of "straight talk" answer.
Some related posts on Campaign 2008:
Acquitting and downloading some additional USSC priorities
As noted in this prior post, earlier this month the US Sentencing Commission posted here its "Federal Register Notice of proposed priorities and request for public comment." Though I am pleased to see some of what the USSC is suggesting as priorities, I am disappointed by some notable omissions from the current proposals.
Specifically, I had heard some rumors that the USSC was going to take a new and focused look at acquitted conduct enhancements. Perhaps this topic is on the USSC's agenda, but the current list of proposed priorities do not say boo about acquitted conduct. I often asked, by reporters and others, about how many federal sentencing cases involve acquitted conduct enhancements. I strongly believe that the Commission should, at the very least, assemble and analyze data on the frequency and impact of acquitted conduct sentencing enhancements.
In addition, I have lately noticed an extraordinary amount of variation in the charging, bargaining and sentencing realities in child porn downloading cases. (The recent Rausch decision reported here and this local article reporting on another of these sad cases provides a good example of how many judges do not seem to find the extant guidelines to be a good guide in these cases.) I plan to write directly to the Commission to encourage it to take a very close look at the growing universe of federal child porn prosecutions and sentences.
Are all states going to need to create old-age prisons?
This article in today's Kansas City Star, headlined "Missouri uses special unit to cope with growing numbers of geriatric inmates," spotlights one way that one state is dealing with an aging prison population. Here are excerpts:
As states and the federal government struggle to deal with the result of inmates serving more time, corrections experts seek solutions or at least ways to cope. One is the “Old Timer’s Unit” at Moberly Correctional Center. Burton is one of 22 prisoners there. The average age is 63.
Kansas provides hospice care at prisons and is building a $6 million clinic at Lansing that will house its sickest male prisoners. Florida has geriatric wings in four prisons. In California’s huge penal system, a federal receiver who oversees prisons recently asked a judge to seize $8 billion from the state to build medical units for sick and mentally ill inmates....
Only 5.24 percent of Missouri inmates were over the age of 50 in 1995, compared with 13.4 percent last year. In Kansas it was 6.1 percent in 1995 and twice that last year....
The Old Timer’s Unit remains the only one of its kind in the state, but that could change, Warden Dean Minor said. He is on a corrections department task force studying how to handle the aging prisoner problem. Putting them in a cell alone made obvious sense because some could not climb to a top bunk, he said, and the personal toilet and sink give them privacy. “At that juncture in life,” he said, “privacy becomes more of an issue.”
Some related posts:
Persistent confusion over ex-felon voting rights
This local Alabama piece, headlined "State's felon voting law still unclear," tells a story that seems too common: even when states make efforts to restore the voting rights of former felons, legal confusion and uncertainty often reigns. Here is the start of an interesting piece:
When Alabama made it easier for certain felons to regain the right to vote, it was hailed as a victory. But the law designed to make it easier for them to regain their voting rights has caused confusion and lawsuits -- because only crimes involving "moral turpitude" include disenfranchisement as part of the penalty. The state has no definitive list of which specific crimes cost a person their voting rights and which don't, and it's not likely to get one before the November elections.
Like most states, Alabama restricts the rights of felons to vote. The Sentencing Project estimates some 250,000 people in the state are ineligible to vote because of a felony conviction.
The new law was supposed to make it easier for felons who had done their time to regain their voting rights. Though an advocate for felon voting rights said the situation has improved since the law went into effect in 1993, the phone still rings off the hook every election year at the pardons and parole board with people asking questions.
As the piece suggests, The Sentencing Project is the place to go for information and resources about felon voting rights. This March 2008 document from The Sentencing Project, titled "Felony Disenfranchisement Laws in The United States," documents some of the basics. Unfortunately, in Alabama and many other states, the basic laws do not provide easy or complete answer to exactly who is and who is not eligible to vote.