October 25, 2008
"The California Prison Disaster"
The title of this post is the title of this potent editorial in today's New York Times. Here are excerpts:
The mass imprisonment philosophy that has packed prisons and sent corrections costs through the roof around the country has hit especially hard in California, which has the largest prison population, the highest recidivism rate and a prison budget raging out of control.
According to a new federally backed study conducted at the University of California, Irvine, the state’s corrections costs have grown by about 50 percent in less than a decade and now account for about 10 percent of state spending — nearly the same amount as higher education. The costs could rise substantially given that a federal lawsuit may require the state to spend $8 billion to bring the prison system’s woefully inadequate medical services up to constitutional standards.
The solution for California is to shrink its vastly overcrowded prison system. To do so, it would need to move away from mandatory sentencing laws that have proved to be disastrous across the country — locking up more people than protecting public safety requires.
In addition, the state also has perhaps the most counterproductive and ill-conceived parole system in the United States. More people are sent to prison in California by parole officers than by the courts. In addition, about 66 percent of California’s parolees land back in prison after three years, compared with about 40 percent nationally. Four in 10 are sent back for technical violations like missed appointments or failed drug tests....
State lawmakers, some of whom are fearful of being seen as soft on crime, have failed to make perfectly reasonable sentencing modifications and other changes that the prisons desperately need. Unless they muster some courage soon, Californians will find themselves swamped by prison costs and unable to afford just about anything else.
The story of California's failure to move forward with much-needed sentencing and prison reform (even while other states from many other parts of the country done so) highlight that being "dumb on crime" is not a function of various traditional political divides like red/blue or north/south or conservative/liberal or elites/common-folks. Rather, being smart on crime takes serious and committed leadership, real political wisdom and courage, and open-mindedness to new ideas and distinct reform paradigms, all of which seem to have been in short supply in California as its sentencing and prison problems have grown progressively worse over the past decade.
Intriguing report on woman facing federal child porn sentencing
This local story from Iowa describes some challenging sentencing issues raised in an unusual case in which a female defendant is facing sentencing following her plea to federal child porn charges. Here are some of the details from the sentencing hearing:
Heather Fiorella participated in taking nude photos of a 14-year-old girl who was in her care but regarded them as child erotica, not child pornography. Fiorella admitted to doing something despicable and being ashamed for her behavior but said she had no interest in child pornography. It was her boyfriend, John Shuler, who liked it.
Fiorella faces up to 30 years in federal prison for three counts of possessing child pornography. She pleaded guilty in December 2007. Shuler, her co-defendant in the crime, was sentenced in September to more than 39 years in prison for conspiracy to produce child pornography and production of child pornography.
U.S. District Chief Judge Linda Reade said she wanted more time to look at the sentencing guidelines and consider the arguments presented in the hearing Friday before sentencing Fiorella.
Fiorella and Shuler took nude photos of two girls, ages 14 and 16, and Shuler produced a child pornography video, according to court testimony. Michael Lahammer, Fiorella's defense attorney, tried to explain Fiorella's actions by saying she was victim of domestic abuse.... Mary Ann Pedde, an advocate with the Domestic Violence Intervention Program in Iowa City, testified about how domestic abuse victims behave and how they can be controlled by the batterer with drugs, sex, alcohol and threats to the victim's children. She said many victims will also commit criminal offenses for batterers.... Lahammer argued that Fiorella was under the control of Shuler and the child pornography was his idea. Fiorella thought the photos of the girl were going to be nudist or child erotica type photos.
[Assistant U.S. Attorney Sean] Berry said a video the court has in evidence shows differently. There was a hidden camera in operation when Fiorella and Shuler brought in the 14-year-old and encouraged her to do sexually explicit acts. On the tape, Fiorella is also talking about having sex with Shuler in front of the girl....
Lahammer argued that Fiorella didn't know there was a hidden camera. Berry said it was obvious the way Fiorella positioned the girl in front of the hidden camera that she knew. He encouraged Reade to take another look at the video. Berry said it was unreasonable to think Fiorella didn't know Shuler had child pornography in the house they shared. Investigators found child pornography on the same disc as the nude photos of the teen and on Shuler's computer, along with several discs.
Eleventh Circuit issues stay in Troy Davis case
The Atlanta Journal-Constitution has this report on the latest development in one of the most-discussed capital cases in recent years:
The federal appeals court in Atlanta on Friday halted Troy Anthony Davis’ execution, the third time his life has been spared shortly before he was to be put to death. Davis’ claims of innocence, based largely on the recantations of prosecution witnesses, have attracted international attention and protest.
He was set to be executed by lethal injection Monday evening for the 1989 murder of an off-duty Savannah police officer. The 11th Circuit’s ruling is the latest in what has been a roller-coaster ride of last-ditch appeals in which Davis, 40, has been repeatedly denied relief only to be spared again and again....
Since Davis’ 1991 trial, seven of nine key prosecution witnesses have backed off their testimony. Others have come forward and implicated another man in the killing of 27-year-old Savannah Police Officer Mark Allen MacPhail. The witnesses’ recantations have prompted leaders across the globe to call for Davis’ death sentence be commuted. But Chatham County prosecutors say they are certain Davis is a cop killer and deserves to die for it.
October 24, 2008
What sentence would be just for a national crime hoax?
This CNN piece has the latest details on the "political attack" that has produced a lot of buzz in the last few days:
A Republican campaign worker who told police she was assaulted by a man angered by a John McCain sticker on her car admitted she made up the report, the Pittsburgh, Pennsylvania, assistant police chief said Friday.
Police say Ashley Todd, 20, admitted making up the report she was attacked because of a McCain sticker. Ashley Todd, 20, of College Park, Texas, will be charged with filing a false police report, a misdemeanor, and may face more charges, said police spokeswoman Diane Richard at a news conference. "This has wasted so much time.... It's just a lot of wasted man hours," Assistant Police Chief Maurita Bryant said at the same briefing....
Bryant described Todd as "very cordial, polite, cooperating," and said the woman was surprised by all the media attention. Asked whether the false report was politically motivated, Bryant replied, "It's difficult to say."
"She is stating that she was in her vehicle driving around, and she came up with this idea," she said. "She said she has prior mental problems and doesn't know how the backward letter 'B' got on her face." However, Todd was the only one in the vehicle, and "when she saw the 'B' she thought she must have been the one who did it," Bryant said. "We're talking with the district attorney's office and conferring on just how we're going to handle it," she said. "It's been different stories through the night and this morning."
Other than being a sad tale, this story describes a crime. The question for creative weekend fun is what kind of sentence should be considered in a case like this. Should Todd be forced to put an Obama bumper sticker on her car? Or required to make a donation to the DNC? Or required to investigate allegations of voter fraud? You make the call.
More evidence that death penalty studies are ineffective if not attuned to political realities
There are no shortage of groups, ranging from national organizations like the ABA an the ACLU to lots of local groups, that devote extraordinary amounts of time and energy producing long and thoughtful reports criticizing the administration of the death penalty in various jurisdictions. But this local article, headlined "Fla.'s death penalty unchanged 2 years after study," highlights that all this capital criticism does not often prompt any actual reforms. Here are snippets from the article:
Two years ago, an independent panel made 12 recommendations to reform Florida's death penalty process. That report has since done little more than gather dust ever since. None of the proposals from the American Bar Association panel of judges, prosecutors, defense lawyers and college professors has been adopted by the state and it's now unlikely any ever will.
Some panel members say it all comes down to politics: Gov. Charlie Crist and state lawmakers don't want to appear soft on the death penalty by adopting measures that would be seen as impeding executions.... Christopher Slobogin, a former University of Florida law professor, was the chairman of the panel. He said state politicians fear that if they took up the panel's recommendations that "would make them look like they were anti-death penalty, which is the kiss of death, so to speak, in Florida politics."
But some legislators counter that many of the recommendations are unconstitutional and accuse the panel of making them with an anti-death penalty bias. "We've looked at all the recommendations that were available and we've made the necessary changes," said state Sen. Victor Crist, who is not related to the governor....
Sandy D'Alemberte, former Florida State University president and a former president of the American Bar Association, served on the National Advisory Board of the ABA project, which also examined the death penalty in Alabama, Arizona, Georgia, Indiana, Ohio, Pennsylvania, and Tennessee. He believes changes still need to be made. "The whole system of criminal justice is broken," he said. "Look at the number of DNA exonerations in Florida and these have not been followed by any corrections of the problems in the system."
Gov. Crist has no further interest in the ABA's suggestions, according to his spokesman, Sterling Ivey. He is particularly opposed to requiring an unanimous jury recommendation.
Saying sorry helps in mortgage fraud sentencing
This local article, headlined "2 apologize, are sentenced for roles in mortgage fraud," provides an example of how sentencing even for a new-fashioned crimes can be impacted by old-fashioned apologies (and cooperation):
Kenyatta Johnson's apology for her role in mortgage fraud was almost too soft to hear. Meanwhile, Dwayne L. Carter's apology yesterday in U.S. District Court was booming, and to "the city of Columbus" and mortgage-fraud victims.
Federal Judge Algenon L. Marbley ordered both to spend time in prison for the crime of conspiracy to commit mortgage fraud. Carter, 36, and Johnson, 28, are two of nine people charged in a local mortgage-fraud scheme that affected more than 200 people and involved loans worth more than $2.6 million, IRS agents have said...
Marbley ordered that Johnson, who processed loans, serve one month in prison and 11 months on house arrest. Carter, a loan officer, was ordered to prison for two years. When they are released, both will be supervised for three years.
Marbley said he gave Johnson, of Michigan, leniency because by all accounts "she was the least culpable in the scheme." She has children dependent on her and has no criminal past, the judge said. Assistant U.S. Attorney Daniel Brown asked that Carter be given a reduced sentence because the Reynoldsburg man "was the very first one to cooperate, which he did essentially at day one."
October 23, 2008
Busy death chamber in Texas
As detailed in this AP article, Texas is on pace for a lot of executions in the next few week:
A dozen condemned inmates in the Texas Department of Criminal Justice's so-called "death watch" cells are being executed at a scheduled rate of two a week over six weeks.
Two were executed the week of Oct. 13. Two were scheduled for this week. And two more the week after that. Then six more in November, adding to Texas' standing as the nation's most active death penalty state.
In DC for ABA sentencing fun
As noted in this prior post, the ABA Criminal Justice Section has put together an amazing sentencing event, titled "Sentencing Advocacy, Practice and Reform Institute," as part of a set of criminal justice meetings this week. All the details of the sentencing event taking place on Friday can be found in this official brochure. The ABA's website has this press release discussing other activities that should be of interest to sentencing fans, and I am planning to head this afternoon over to the white-collar crime town hall meeting taking place this afternoon.
I won't be live-blogging any of these events, but I will happily and eagerly link to anyone who does.
Deep thoughts on death and sovereignty
I just noticed this intriguing paper on SSRN by Adam Thurschwell, titled "Ethical Exception: Capital Punishment in the Figure of Sovereignty." Here is the abstract:
Philosophers and legal theorists have traditionally analyzed capital punishment as a moral or ethical problem, by asking questions like: Is capital punishment justifiable given the utilitarian or retributive goals of the criminal justice system? Is it or can it be made consistent with our commitment to the moral autonomy and dignity of the human person? And so on. In this paper I criticize the moral-philosophical approach and argue that a far more fruitful way of analyzing the institution of the death penalty is to approach it from a political-philosophical perspective -- in particular, by viewing it in its relation to the concept and practice of sovereignty that undergirds our understanding of the political state. Viewed in this way, it becomes clear that capital punishment is a component of the essential attribute of post-Westphalian political sovereignty: the sovereign's right to the death of its citizens. It is the sovereign alone that has not only the power but the right to kill for violation of its edicts, and to force its citizens to sacrifice their lives in defense of its own life through military conscription. I then show that approaching capital punishment as an essential component and expression of sovereignty provides more conceptual and practical insight into the contemporary vagaries of capital punishment than does the moral perspective.
The point of departure for this critique is the recent debate in the Stanford Law Review between Cass Sunstein and Adrian Vermeule (on one side) and Carol Steiker (on the other) on the moral legitimacy of the death penalty, a debate that illuminates both the weakness of the moral philosophical approach and the unavoidability of the relationship between capital punishment and sovereignty. After showing that, in different ways, both sides of this debate depend upon underlying conceptions of the state as (in Michel Foucault's words) the entity with "the power to exercise the right to decide life and death," I go on to explicate Foucault's notion and show that his conception of sovereignty is not novel but is in fact a shared assumption of virtually all Western philosophical approaches to the political state, from the classical social contractarianism of Locke, Hobbes and Rousseau to Carl Schmitt's decisionism to Giorgio Agamben's recent elaboration of Foucault's idea of biopolitics.
I conclude by suggesting how the sovereignty perspective sheds light on a wide range of theoretical, political, and legal-doctrinal phenomena occurring within the sphere of capital punishment today that remain entirely mysterious from the moral perspective. These include, among others, the United States's stubbornly retentioninst position in the face of the accelerating trend toward abolition among other nations, the legal-doctrinal conundrums that arise when capital defendants waive their right to defend and volunteer for execution (sometimes referred to as state-assisted suicide), and the fact that the heated controversy over the use of international law in the Supreme Court's interpretation of the United States Constitution first emerged in a capital case (Roper v. Simmons, in which the Supreme Court declared it unconstitutional to employ death as a punishment for crimes committed by juveniles).
WSJ reviews the state of federal child porn sentencing
The Wall Street Journal has this new article discussing trends in federal child porn prosecutions and sentencing. The piece is headlined, "Making Punishments Fit the Most Offensive Crimes: Societal Revulsion at Child-Pornography Consumers Has Led to Stiff Prison Sentences -- and Caused Some Judges to Rebel." Here is how it begins:
Are people who download and view child pornography -- but aren't themselves molesters -- as much of a threat to society as rapists or murderers? The question, being raised by federal judges in response to tough sentences meted out to consumers of child pornography, goes to society's view of repugnant behavior and the legislative response to it.
The average federal prison sentence for individuals who possess, receive or share child pornography jumped to roughly seven years in fiscal 2006 from about three years in 1994, according to Justice Department data. In federal cases, the mandatory minimum for downloading images is five years in prison without parole. Defendants who download particularly lewd images, possess a large number of images or share some of them with others often get sentences of 15 or even 20 years.
Some related federal child porn sentencing posts:
October 22, 2008
Wisconsin state appellate court urges guideline repeal
This Chicago Tribune article provides this report on an interesting ruling from a Wisconsin state appellate court today:
Wisconsin lawmakers should scrap a law requiring judges to consider sentencing guidelines when punishing people who commit certain felonies, an appeals court said Wednesday. The state commission that kept the guidelines current no longer exists and that makes considering them a pointless exercise, the District 2 Court of Appeals said.
Lawmakers eliminated the Wisconsin Sentencing Commission in a cost-saving measure in last year's state budget. The commission was created in 2001 to study sentencing patterns in Wisconsin, with a goal of making them more uniform from county to county....
But lawmakers failed to repeal a law that requires judges to consider the guidelines when they eliminated the commission. The appeals court warned Wednesday that is giving defendants an avenue for appeal since many judges are no longer filling out the worksheets or looking at the guidelines. Lawmakers must get rid of the law, Chief Judge Richard Brown wrote for a three-judge panel.... Brown made the plea at the end of an opinion in which the court upheld a 30-year prison term for a former Mr. Wisconsin body building champion convicted of torturing and sexually assaulting a woman for hours. The trial judge did not mention the guidelines when he sentenced Timothy Kaprelian of Racine on two counts of second-degree sexual assault and one count of false imprisonment last year.
The appeals court ruled that was a "harmless error" since the judge did consider many of the same factors before imposing the sentence. Lawyers should not cite similar errors as grounds for appeal in the future, it said. "Given the demise of the commission ... most trial judges have fashioned their own highly workable -- and perhaps more elaborate -- assessments and, as here, the record demonstrates that the sentence was the result of a thoughtful, deliberative process," Brown wrote.
The 16-page ruling in Wisconsin v. Kaprelian is available at this link.
Rudy Giuliani doing robocalls accusing Senator Obama of being soft on crime
Earlier this month there were reports that Senator McCain was going to resort to old-school "soft-on-crime" attacks as part of his strategy to get back his mojo in the final month of the 2008 campaign. Thanks to reporting by Politico, we now are starting to see the specifics of the Big Mac attack on the crime front.
First, as detailed here and here, the Republican Party of Florida has paid for a flier that alleges in various ways that Senator Obama would be soft on crime. And now, as reported here and here, everyone's old pal and favorite mayor is getting into the act: "Rudy Giuliani is portraying Barack Obama as soft on crime in robocalls being blasted out to swing states by the RNC and the McCain campaign."
You can here this new robocall at this link, and here is the heart of Rudy's message to voters:
Hi, this is Rudy Giuliani, and I'm calling for John McCain and the Republican National Committee because you need to know that Barack Obama opposes mandatory prison sentences for sex offenders, drug dealers, and murderers.
It's true, I read Obama's words myself. And recently, Congressional liberals introduced a bill to eliminate mandatory prison sentences for violent criminals -- trying to give liberal judges the power to decide whether criminals are sent to jail or set free. With priorities like these, we just can't trust the inexperience and judgment of Barack Obama and his liberal allies.
Candidly, I am not especially surprised that Senator McCain is playing this old-school "soft-on-crime" card in an effort to make up ground in the polls. Indeed, I am a bit surprised that it took the McCain camp this long to try to beat up Senator Obama for putting responsible policy-positions ahead of inflammatory rhetoric in the sentencing arena.
Some related posts:
- Hoping for a presidential town hall on crime and punishment
- Why is Senator Jim Webb the only national figure focused on the prison economy?
- "Real commander needed for the war on drugs"
- Politics and the war on drugs
- FSR publishes issue on "American Criminal Justice Policy in a 'Change' Election"
New BOP regulation on halfway houses
The FAMM website has this interesting item about some new regs coming from the federal Bureau of Prisons. Here are excerpts:
The Second Chance Act, signed into law by President Bush on April 9, 2008 increased the maximum amount of time a federal prisoner can be considered for placement in a halfway house from 6 months to 12 months. The Act required the BOP to issue new regulations implementing this new rule within 90 days of April 9. On October 21, 2008, the BOP issued an “interim rule with request for comments” that changes 28 C.F.R. §§ 570.20, 570.21, 570.22. A copy of the rule is available online at http://edocket.access.gpo.gov/2008/E8-24928.htm....
Federal law provides for exceptions to this notice and comment process. In this case, the BOP announced it is not going through the usual notice and comment procedure. It explained that the Second Chance Act timeframes (requiring regulations within 90 days of the law’s enactment) prevent it from publishing a proposed regulation and seeking comment. Instead, they published this “interim rule with request for comments,” and the interim rule goes into effect immediately. The BOP announced that it will “consider and discuss comments received during the comment period in our final rule document.”
The new rule provides few clues on how the BOP will implement the new halfway house provisions in the Second Chance Act. The Second Chance Act changed the amount of time a prisoner is entitled to be considered for pre-release placement in community confinement and eliminated the so-called “ten percent rule.” The new rule simply restates the Second Chance Act’s requirement that the BOP give individualized consideration to each prisoner when deciding how much halfway house time to award. This “individualized consideration” will include considering the five factors set forth in 18 U.S.C. § 3621(b), as well as ensuring that the time granted to each prisoner is long enough “to provide the greatest likelihood of successful reintegration into the community.”
Two new articles of interest thanks to law.com
Thanks to How Appealing, I see that law.com has these two interesting new stories on-line:
- En Banc 11th Circuit Case Tests Mail Fraud Law: On an issue that has split circuit courts, DOJ sends top criminal appeals lawyer to argue in rare en banc session
Is there an ivy-leaguer exception to federal child porn charges?
This new AP story, headlined "Penn hacker sentenced, avoids child porn charges," has me concerned yet again about extreme sentencing disparities (and perhaps even nefarious discrimination) resulting from how federal prosecutors are exercising their discretion to prosecute child pornography offenses. Here are the basics as reported by the AP:
A federal judge questioned why a white Ivy League student found during a computer hacking probe with thousands of images of child pornography was not charged with that crime, sparing him a decade-long prison sentence that a black convicted child pornographer faced at the same hearing.
University of Pennsylvania senior Ryan Goldstein, 22, of Ambler, was sentenced Tuesday to three months in prison and five years of probation for a hacking scheme that caused a Penn engineering school server to crash in 2006. Assistant U.S. Attorney Michael Levy said the decision not to charge Goldstein for the child pornography was appropriate given his extensive cooperation.
Voicing concerns about fairness, the judge took the unusual step of sentencing Goldstein alongside a Philadelphia man, Derrick Williams, who was facing eight to 10 years in prison for child pornography in an unrelated case. Both men were found with several thousand images of child pornography, and each had copied some of the images, though Williams had also posted about 15 of them on a Web site, prosecutors said.
The judge said he could not help noting that Williams is black and Goldstein is white. "This has weighed very heavily on my mind, as I think it would most judges," U.S. District Judge Michael Baylson said. "That's why I've brought this case together with the Williams case." However, he said the sentencing disparities were not connected to race.
Baylson gave Williams a two-year prison term, noting his steady work history and minor criminal record. Goldstein pleaded guilty to a misdemeanor charge and spent long hours helping the FBI investigate a worldwide hacking enterprise, lawyers for both sides agreed. But even as he was cooperating, Goldstein twice engaged in unspecified mischief with FBI computers, Baylson said. "It was very detrimental to the investigation," said Baylson, who heard details of the misconduct behind closed doors at the start of the sentencing hearing. "It's very disturbing."
I find lots of issues raised by this articles disturbing, all of which track back to my core concern that different federal prosecutors are approaching child porn prosecutions in divergent ways without any obvious semblance of consistency and without any real transparency.
Indeed, one major irony of this case is the fact that defendant Derrick Williams clearly got a major break as a result of ending up in the same courtroom as defendant Ryan Goldstein. As regular readers know well, it is very rare now for a federal defendant to get a prison term of only two years for possessing thousands of child porn images and posted some to a website. In many other similar cases, a defendant is charged under a statute requiring the application of at least a five-year mandatory minimum sentence and can often be subject to enhancement that make the applicable guideline range call for 15 or more years in prison.
To see how unusual both these federal sentences are for significant child porn offenses, one does not even need to look to my prior posts on the topic. Newspapers from other parts of the country include these telling headlines:
A close review of all these cases suggests that, as a general matter, defendants who personally try to engage in sexual activity with kids get longer sentences for possessing child porn. But one would be hard pressed to find a consistent set of principles to explain exactly why some federal child porn defendants face decades in federal prison, some face many years in federal prison, while others only end up facing months.
As I have stressed in a number of prior posts, anyone seriously concerned about federal sentencing disparities has to start taking a very close look at federal child porn cases. And, critically, this close look must focus closely on the operation of prosecutorial discretion, which seems to have an even bigger impact in these cases than judicial discretion.
Some related federal child porn sentencing posts:
Will Senator Ted Stevens soon be thinking extra hard about sentencing laws he helped pass?
As detailed in this Washington Post report, a federal jury in DC "today will begin deliberating two conflicting views of Senator Ted Stevens, the powerful Alaska Republican charged with lying on financial disclosure forms to hide more than $250,000 in gifts and renovations to the Alaska house." The outcome of these jury deliberations will decide, of course, whether Senator Stevens has to give serious thought to federal sentencing realities. It's probably inappropriate for me to already start speculating about the kind of sentence he might be facing, but it is so much fun.
Senator Stevens' long service in the US Senate adds an interesting and historic twist to this case. To my knowledge, Senator Stevens could become the only person who has voted on every major piece of modern federal crime legislation to be subject to the federal sentencing consequences of all those votes. Senator Stevens has been in the Senate for nearly 40 years; though I am not aware of him having an active role in the passage of the Sentencing Reform Act or other major sentencing legislation, there is still great irony to the possibility he will face sentencing pursuant to sentencing reform laws he helped make a reality.
Anyone daring enough to predict the outcome of jury deliberations and then possible sentencing? Given his government position and the fact that Stevens testified at trial, he could be facing many sentencing enhancements under the guidelines if he is convicted. But I have a gut feeling that, in part because of his age and other offender characteristics, Stevens will never see the inside of a federal prison cell even if he is convicted on all charges.
October 21, 2008
Judge Merritt continues urging broader perspectives at sentencing
Earlier this year (as noted here), Sixth Circuit Judge Gilbert Merritt began lamenting "the problem of guidelineism, or 'guidelinitis,' the inability of most federal courts to break their habit of mechanically relying just on the guidelines alone." Today, in his dissent in US v. Pruitt, No. 06-6002 (6th Cir. Oct. 21, 2008) (available here), Judge Merritt again chides his colleagues for not bringing broader perspectives to their sentencing work. Here is the last paragraph from his Pruitt dissent:
My colleagues’ opinion is a purely formalistic, legalistic document. It advances no sentencing purpose, calls on no principle or policy of sentencing, never mentions rehabilitation, deterrence, “no greater punishment than necessary” (a version of the rule of lenity), or any other guidepost set out by Congress in 18 U.S.C. § 3553. For two minor and remote marijuana convictions Pruitt may receive the “career criminal” designation and a disproportionate sentence comparable to the sentence he would receive if his two prior convictions were instead for rape or robbery. The defendant here is not an abstraction or a legalistic category. He is a real-life person addicted to drugs, guilty of growing marijuana plants at his house — where he also had three firearms like the “Arms” the Supreme Court recently held “the people have the right to keep and bear” under the Second Amendment. For this terrible crime, and his other two prior minor offenses, we are sending the case back for another sentencing hearing for the district court to make an unknowable calculation based on facts outside the record of this or any record we can judicially notice. Even if such a calculation could be made, the Supreme Court has told us we may not go so far afield.
Attacking the felon exception in Heller's articulation of Second Amendment rights
Adam Liptak in the New York Times has this great article on one of my favorite modern constitutional topics, the Second Amendment and the Supreme Court's work in Heller. The piece is headlined "Ruling on Guns Elicits Rebuke From the Right," and I especially like how it starts and ends:
Four months after the Supreme Court ruled that the Second Amendment protects an individual right to possess guns, its decision is under assault — from the right.
Two prominent federal appeals court judges say that Justice Antonin Scalia's majority opinion in the case, District of Columbia v. Heller, is illegitimate, activist, poorly reasoned and fueled by politics rather than principle. The 5-to-4 decision in Heller struck down parts of a District of Columbia gun control law....
In his article, Judge Wilkinson wrote ... that the Roe and Heller cases shared a number of common flaws, including “a failure to respect legislative judgments,” “a rejection of the principles of federalism” and “a willingness to embark on a complex endeavor that will require fine-tuning over many years of litigation.”
Judge Wilkinson saved particular scorn for a brief passage in Justice Scalia’s opinion that seemed to endorse a variety of restrictions on gun ownership. “Nothing in our opinion,” Justice Scalia wrote, “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Whatever else may be said about the Second Amendment, Judge Wilkinson wrote, those presumptions have no basis in the Constitution. “The Constitution’s text,” he wrote, “has as little to say about restrictions on firearm ownership by felons as it does about the trimesters of pregnancy.”
Mr. Levy, too, said he was not a fan of the passage. “I would have preferred that that not have been there,” he said. “It created more confusion than light.”
It is too soon to say much about the legacy of Heller. But Judge Wilkinson said that Heller, at a minimum, represented “the worst of missed opportunities — the chance to ground conservative jurisprudence in enduring and consistent principles of restraint.” At worst, he warned, “There is now a real risk that the Second Amendment will damage conservative judicial philosophy” as much as Roe “damaged its liberal counterpart.”
Some related posts (written both before and after the Supreme Court's opinion in Heller)::
Tenth Circuit thoughtfully conducts reasonableness review
Though not appearing to break any new ground, the Tenth Circuit today in US v. Martinez-Barragan, No. 06-2333 (10th Cir. Oct. 21, 2008) (available here), provide a good example of an appellate court taking its obligation to conduct reasonableness review very seriously.
Based on my quick review, the facts and issues in Martinez-Barragan seem to make it a classic "mine-run" case in which the defendant was given a bottom-of-the-applicable-guideline-range sentence. But even though little seems extra special about the case, the panel in Martinez-Barragan clearly took a lot of time (and 20 pages) to explain why the sentencing decision below was not unreasonable. Though the defendant and his counsel surely are unhappy with the result, they at least can be confident that the Tenth Circuit gave their claims serious consideration.
Vermont struggling to implement AWA sex offender mandates
This interesting local article from Vermont, headlined "Issues of cost, content arise over state's sex offender registry," highlights some of the struggles that states are having when trying to implement some aspect of the Adam Walsh Act for the registration and monitoring of sex offenders. Here are excerpts:
Under the provisions of a new federal act, Vermont stands to lose up to $35,000 in government funding if it doesn't expand its Internet sex offender registry. But officials say the changeover would add about 2,000 new names to the list –- and cost upwards of $3 million to implement.
The Adam Walsh Child Protection and Safety Act, passed by Congress in 2006, seeks to unify Internet registry standards across all 50 states. Vermont would have to overcome a number of logistical hurdles in order to comply, lawmakers say. But the new act has also spawned a philosophical debate about which offenders belong on the publicly accessible Internet sex offender registry....
Vermont has about 2,400 sex offenders on its statewide registry, but only about 400 meet the threshold required to land on the more public Internet registry. Under the Adam Walsh Act, all 2,400 offenders would likely appear online, because federal guidelines use an "offense-based" classification system to assess risk into a three-tier hierarchy. Anyone convicted of those crimes – even non-contact mis-demeanors – would appear on the registry for anywhere from 15 years to life, depending on the offense.
Vermont, conversely, uses a "risk-based" system that relies on a number of different criteria. And lawmakers and policy makers have thus far reserved the Internet registry for only the more serious offenders....
The Vermont Department of State's Attorneys and the office of the Defender General have said an expanded registry could lead to millions of dollars in additional legal costs for the state, mainly because offenders would prove less amenable to plea deals if the conviction meant a slot on the Internet sex offender registry. The office of the Defender General estimated it would need an additional $1.8 million if the new registry standards were enacted. The Department of State's Attorneys pegged first-year costs at more than a half-million dollars....
The federal guidelines also require more detailed information on the offenders, including their street addresses, the addresses of their employers, their license-plate numbers and descriptions of their vehicles. Juvenile offenders as young as 14 also would qualify for the Internet registry for extreme offenses. "The question ought to be what makes sense for Vermont and how far do we go?" Sears said. "Should people who had a statutory rape conviction be on there for life? Or someone who committed a non-contact offense? These are some of the issues we need to think about."
More on the consequences and costs of undue leniency for repeat drunk driving
This article from the Milwaukee Journal Sentinel that reinforces my concerns (recently discussed here) about the harmful consequences and costs of undue sentencing leniency being shown to repeat drunk drivers. The new piece is headlined "One drunken driver’s tab: $365,000," and here is how it starts:
The little blue Chevy Cavalier was mangled, its 19-year-old driver trapped inside. Up against a nearby tree, the pickup truck was on fire. The crash woke Blaze Selestow, who ran out of his house and heard the pickup's driver pleading: "Help me. Help me." Selestow smelled alcohol as he pulled Ricky Adair out of the cab. Moments later, the truck burst into flames.
Adair was a mess. He had two broken kneecaps and two broken ankles, along with a huge gash on his forehead and a host of other injuries. He also had a blood-alcohol level of 0.273, then nearly three times the legal limit. It wasn't the first time Adair had been caught driving drunk, or the second, or even the fifth. Before the accident that nearly killed 19-year-old Sarah Johnson, Adair, then 36, had been convicted of drunken driving at least nine times.
The March 1999 accident in Menomonee Falls and Adair's other drunken-driving offenses came with years of financial and emotional costs: to the taxpayers, to society, and to Adair, Johnson and their families. Adair's drinking and driving has cost nearly $365,000 since 1985, the Journal Sentinel found. Of that, nearly $240,000 came out of other people's pockets in the form of tax dollars or insurance payouts. But the money spent to prosecute, punish and rehabilitate Adair and to compensate Johnson is only part of the story.
In 2007 alone, there were 8,327 alcohol-related crashes in the state, according to the Wisconsin Department of Transportation. The costs are enormous.... Every year, Wisconsin taxpayers pay $2.7 billion in alcohol-related police and court costs; incarceration; crash investigation and cleanup; lost productivity; academic failures; and premature deaths, according to the Center for Science in the Public Interest.
Linked to the story is this interesting graphic that documents how the paper determined the economic costs resulting from a single defendant's inability to stop drinking and driving. Needless to say, the social and personal costs of this crime (and our failure to be tough enough at sentencing) dwarfs the raw economic numbers.
Interestingly, the Sentinel article goes on to report that Adair finally got a tougher sentence for drunk driving after this tenth offense — five years in prison, of which he served over three years — and this tougher sentence finally helped him finally become a law-abiding citizen:
By the time Adair finished a program and got out of prison, he had served 40 months of his 60-month sentence. Keeping him locked up cost more than $100,000. By then, both his parents had died. Finally, he said, he had reached the point where the negative consequences of drinking outweighed the fun.
"By having enough pain from it, the physical, the mental . . . missing my family, that impact was enough on me to not ever want to do that again," he said. Since his release from prison more than five years ago, Adair has been convicted of two misdemeanors for running an unmetered natural gas line to his garage.
Adair has not been charged with another drunken-driving offense. He holds a valid driver's license. He said he also has not taken a drink. "Every time I wake up I'm just happy that I'm not in prison or hurting anybody or hurting myself anymore," he said.
Some related posts:
- Getting tougher on drunk driving
- Why do we worry so much more about sex offenders than drunk drivers?
- Technology versus toughness to combat drunk driving
- Undue leniency for drunk drivers?
- More discussion of leniency for drunk drivers
- More examples of undue leniency shown to repeat drunk drivers
- Is capital punishment for drunk driving morally required?
October 20, 2008
Dueling Oregon initiatives on drug sentencing reform
This local AP article notes that voters in Oregon are considering a pair of competing ballot initiatives that call for reform of the state's drug sentencing laws. Here are details from the story:
A pair of crime measures on the November ballot offer Oregon voters a choice between mandatory sentencing or increased sentences and expanded drug treatment programs — but not both.
One, Measure 61, is an initiative sponsored by former state lawmaker Kevin Mannix that would send first-time offenders to prison for up to a mandatory three years. The other, Measure 57, is a referral from the Legislature that would increase prison terms for repeat offenders convicted of nonviolent property or drug crimes while expanding treatment and prevention programs.
In the event that both measures pass, as polls suggest, Measure 57 contains a clause stipulating that the one with the highest vote count becomes law.
Mannix said a mandatory sentence for drug and property crimes is needed because so many offenders are given probation that it has become "a joke that's also an insult to the victims of crime." Supporters of Measure 57, however, say the competing Mannix proposal will cost at least twice as much without providing any treatment programs to prevent the most common cause of property crime — drug and alcohol abuse and addiction....
The coalition of supporters for Measure 57 also includes the sheriffs of the state's largest counties, police chiefs, unions, the Oregon Education Association, AARP Oregon and the Oregon Nurses Association....
The state Criminal Justice Commission has estimated that Measure 57 would cost an additional $140 million per biennium while the Mannix initiative would cost between $256 million to $400 million.
A little sentencing action from SCOTUS
As detailed in this post at SCOTUSblog, the Supreme Court made a few sentencing waves today. Here is how Lyle Denniston summarizes the significant sentencing action:
The Supreme Court, in the only new grant on Monday, agreed to spell out the proof that federal prosecutors must offer in order to obtain a more severe punishment for criminal identity theft under a 2004 law. The granted case is Flores-Figueroa v. U.S. (08-108). The Justice Department, noting a split in the lower courts on the issue, had supported review.
The issue is whether the law enhancing the sentence for identity theft requries proof that an individual knew that the identity card or number he had used belonged to another, actual person — that is, a knowledge requirement. The Circuit Courts have split 3-3 on the issue. The dispute centers on the meaning of the word “knowingly” in the 2004 statute....
The Court’s denial of review of another case, testing the constitutionality of the death penalty as it is applied in Georgia, drew a strongly worded statement from Justice John Paul Stevens (available here) arguing that the appeal’s challenge appeared to be supported by the Court’s prior precedents. Stevens, however, did not dissent from the denial, conceding that the inmate had not raised the issues in lower courts. The case is Walker v . Georgia (08-5385). Justice Clarence Thomas, in a separate statement supporting the denial of review (available here), argued that Georgia’s Supreme Court had “faithfully and without any error” applied the Court’s death penalty precedents.
A notable (and notably late) Second Circuit conviction reversal
The Second Circuit today in US v. Ogando, No. 05-0236 (2d Cir. Oct. 20, 2008) (available here), reverses for insufficient evidence a set of jury trial convictions for a livery cab driver hired to pick up a drug courier at the airport. Though not a sentencing case, this paragraph at the end of the long factual recitation in the opinion caught my eye:
Ogando was convicted on all four counts. The Pre-Sentence Report calculated a Guidelines range of 63 to 78 months' imprisonment. The court granted the defense’s motion for a downward departure based on aberrant behavior, U.S.S.G. § 5K2.20, and sentenced Ogando principally to 30 months' imprisonment. Ogando has completed serving his prison sentence.
This case makes me wonder whether bail pending appeal ought to be a default rule for any non-violent first offender. The fact that the Ogando received a (pre-Booker) downward departure for aberrant behavior suggests he had no serious criminal history or propensity for violence. Nevertheless, he had to serve a 30-month prison sentence based on unlawful convictions that it took a few years to get reversed.
Ogando and his case surely will not get anything close to the attention that wrongfully convicted capital defendants receive. Nevertheless, this kind of injustice might readily be corrected through sounder rules and rulings concerning bail pending appeal. Especially in a criminal justice world in which wrongful convictions are an enduring problem, a loosening of bail pending appeal standards perhaps should become an important agenda item for modern criminal justice reformers.
More examples of undue leniency shown to repeat drunk drivers
Drunk drivers pose a much bigger day-to-day threat to average Americans than terrorists or sex offenders. As this official data spotlights, though alcohol-impaired driving fatalities declined in 2007, roughly 250 persons were killed each and every week in the US as a result of alcohol-impaired driving crashes. Nevertheless, though we have an on-going war on terror and see lots of new law designed to get tough and hyper-regulate sex offenders, the terrible harms from the crime of drunk driving still has not prevented recidivist drunk drivers from getting breaks at sentencing.
The latest evidence of undue leniency being shown to drunk drivers comes today from the Milwaukee Journal Sentinel, which has this fascinating new article headlined "Most felony drunken drivers avoid prison." Here are excerpts from the piece:
Four-year-old Jon Port's 1991 death marked the beginning of a grass-roots movement to toughen the state's drunken-driving laws. Eight years later, a new law took effect, making fifth-offense drunken driving a felony. The Legislature's intention was to get repeat offenders off the road. Yet almost a decade later, fewer than half the people sentenced for the felony in Milwaukee County go to prison, a Journal Sentinel analysis found.
Almost two-thirds of people sentenced under the stricter law spent a year or less in custody. Those with higher blood-alcohol levels didn't always serve more time. And almost a quarter of the people convicted of the fifth-offense felony between 1999 and 2006 already have re-offended — some more than once....
Just 70 defendants, or 43%, went to prison, receiving an average sentence of 18 months. Seventeen of those had an opportunity to shave substantial time off their sentences by completing boot camp or a treatment program. At least one defendant got out early after petitioning the judge. More defendants were sentenced to probation than prison. Although 70 of the 71 who got probation terms served between three and 12 months in the Milwaukee County House of Correction, about half were allowed to spend their days in the community on work release. Twenty more defendants received jail sentences, 11 with work-release privileges....
The severity of the sentences for five-time offenders in Milwaukee County varied widely depending on the judge. Daniel Konkol sentenced five defendants on the charge, and all five went to prison. Dennis Moroney sentenced six out of nine defendants to prison. Moroney said he hopes incarceration will make drunken drivers think twice.... On the other hand, David Hansher gave probation in 11 of the 12 fifth-offense drunken-driving cases he heard. Charles Kahn Jr. gave probation in five out of six cases.
As I have indicated in prior posts, I think drunk-driving sentences should start getting pretty tough starting with the second conviction, and I would be fine with a "three-strikes-you're-out" approach to this crime that contributes to the deaths of so many innocent persons and many related social harms. But I find it both troubling and telling that defendants facing sentencing for their fifth conviction for drunk driving are still more likely to receive probation than a prison term.
Some related posts:
- Getting tougher on drunk driving
- Why do we worry so much more about sex offenders than drunk drivers?
- Technology versus toughness to combat drunk driving
- Undue leniency for drunk drivers?
- More discussion of leniency for drunk drivers
- Is capital punishment for drunk driving morally required?
Proceedings from USSC imprisonment alternatives symposium
I am very pleased to see that the US Sentencing Commission has now posted here on its website the proceedings of its big event this past summer examining incarceration alternatives. Here is how the USSC describes the event in its link to the proceedings:
On July 14-15, 2008, the United States Sentencing Commission held a national symposium on alternatives to incarceration in Washington, D.C. The purposes of this symposium were to gather information regarding the use of alternatives to incarceration and to provide a forum for idea-sharing concerning possible implementation of non-incarceration sanctions in the federal system.
The proceedings page has lots of interesting materials through this link to the CD of materials dIstributed at the symposium. Also, the transcript of the proceedings has the look of a formal publication that the USSC has produced. This publication is now must reading for any and everyone working on alternatives to incarceration.
Some recent related posts:
- US Sentencing Commission symposium on incarceration alternatives
- USSC press release about alternatives symposium
- A blog report on USSC alternatives symposium
- Another report from the USSC alternatives symposium
- Report that USSC is working on incarceration alternatives
- Washington Post notices USSC's look into incarceration alternatives
October 19, 2008
One criminal justice echo in the midst of the economic crisis
Various bloggers focused on crime and justice have been pondering how the recent economic crisis could impact criminal justice issues. Today's New York Times looks into some of these realities in this article, headlined "F.B.I. Struggles to Handle Financial Fraud Cases." Here is the lead:
The Federal Bureau of Investigation is struggling to find enough agents and resources to investigate criminal wrongdoing tied to the country’s economic crisis, according to current and former bureau officials.
The bureau slashed its criminal investigative work force to expand its national security role after the Sept. 11 attacks, shifting more than 1,800 agents, or nearly one-third of all agents in criminal programs, to terrorism and intelligence duties. Current and former officials say the cutbacks have left the bureau seriously exposed in investigating areas like white-collar crime, which has taken on urgent importance in recent weeks because of the nation’s economic woes.
Some recent related posts: