November 29, 2008
Notable second-term Presidential execution realities
Over at Capital Defense Weekly, Karl has this intriguing observation in his thanksgiving post:
Not that long ago many commentators were realistically expecting 200+ executions a year by now, especially following the election of a President many had called the Texecutioner. This year’s total executions will be no more than 37 (and possibly just 36), the smallest number since 1994.
Looking back at modern year-by-year execution numbers here at DPIC, I figured out that there actually has been less than 200 executions in the United States through all of President Bush's second term in office (189 so far, to be exact).
In notable contrast, there were nearly twice as many executions in the United States through President Bill Clinton's second term in office (344 by my count, to be exact). Many death penalty abolitionists were quite disappointed by the work of the Clinton Administration, but only now have I realized that President Clinton's second term was nearly twice as deadly and President Bush's second term when measured in terms of total executions nationwide. (I think the numbers might be similar if measured in terms of death sentences, but I do not have ready access to a year-by-year accounting of death sentences imposed nationwide.)
These numbers suggest that perhaps President Bush ended up living up to his claim of being a compassionate conservative at least in this one respect. It also suggests that the death penalty abolitionists on the Senate Judiciary Committee ought to have some sharp and tough questions about the modern administration of capital punishment to ask Eric Holder when he comes before the Committee for his AG confirmation hearings.
Lots more talk about Presidential pardons
This new AP article provides a detailed overview of the variety of federal defendants hoping to be the beneficiary of presidential grace this holiday season. Here are some excerpts:
Some high-profile convicts past and present are among more than 2,000 people asking President George W. Bush to pardon them or commute their prison sentences before he leaves office. Junk-bond king Michael Milken, media mogul Conrad Black and American-born Taliban soldier John Walker Lindh have applied to the Justice Department seeking official forgiveness.
But with Bush's term ending Jan. 20, some lawyers are lobbying the White House directly to pardon their clients. That raises the possibility that the president could excuse scores of people, including some who have not been charged, to protect them from future accusations, such as former Attorney General Alberto Gonzales or star baseball pitcher Roger Clemens.
Those who have worked with Bush predict that will not happen. The White House has declined to comment on upcoming pardons. "I would expect the president's conservative approach to executive pardons to continue through the remainder of his term," said Helgi C. Walker, a former Bush associate White House counsel....
Last week, Bush issued 14 pardons and commuted two sentences — all for small-time crimes such as minor drug offenses, tax evasion and unauthorized use of food stamps. That brought his eight-year total to 171 pardons and eight commutations granted. That is less than half as many as President Bill Clinton or President Ronald Reagan issued. Both were two-term presidents, like Bush....
One Washington lawyer whose clients are directly pursuing the White House for pardons said Bush is expected to issue two more rounds of pardons: one right before Christmas, as is customary, and one right before he leaves office. The lawyer spoke on condition of anonymity to avoid hurting the clients' chances....
Under the Constitution, the president's power to issue pardons is absolute and cannot be overruled — meaning he can forgive anyone he wants, at any time.
Meanwhile, the New York Times today has this new editorial headlined "Mr. Bush and the Pardon Power." Disappointingly, the editorial is focused on urging President Bush not to use his clemency power too much. As regular readers likely realize, I think President Bush should be criticized for failing to use this historic power enough and should be urged to make up for his stinginess by showing that he is true compassionate conservative in his last two months in office.
Some recent related posts:
- "Begging Bush's Pardon"
- A profile of Prez pardons as we enter clemency season
- Will Prez Bush become merciful again as his term concludes?
- Federal clemency news and notes
- "What pardons will Bush issue?"
November 28, 2008
Friday forum: What sentence would you impose on Lori Drew, the MySpace bullying defendant?
A federal jury here issued what legal experts said was the country’s first cyberbullying verdict Wednesday, convicting a Missouri woman of three misdemeanor charges of computer fraud for her involvement in creating a phony account on MySpace to trick a teenager, who later committed suicide.
The jury deadlocked on a fourth count of conspiracy against the woman, Lori Drew, 49, and the judge, George H. Wu of Federal District Court, declared a mistrial on that charge.
Although it was unclear how severely Ms. Drew would be punished — the jury reduced the charges to misdemeanors from felonies, and no sentencing date was set — the conviction was highly significant, computer fraud experts said, because it was the first time that a federal statute designed to combat computer crimes was used to prosecute what were essentially abuses of a user agreement on a social networking site.
Under federal sentencing guidelines, Ms. Drew could face up to three years in prison and $300,000 in fines, though she has no previous criminal record. Her lawyer has asked for a new trial.
In a highly unusual move, Thomas P. O’Brien, the United States attorney in Los Angeles, prosecuted the case himself with two subordinates after law enforcement officials in Missouri determined Ms. Drew had broken no local laws. Mr. O’Brien, who asserted jurisdiction on the ground that MySpace is based in Los Angeles, where its servers are housed, said the verdict sent an “overwhelming message” to users of the Internet. “If you are going to attempt to annoy or go after a little girl and you’re going to use the Internet to do so,” he said, “this office and others across the country will hold you responsible.”
Do you think, dear readers, that a prison term should be part of the sentence Drew is given?
"Ant-breeding swindler executed in China"
The title of this post is the title of this notable AP article from China. Here are the interesting details of how another country deals with white-collar crime:
China has executed a businessman convicted of bilking thousands of investors out of $416 million in a bogus ant-breeding scheme, state media reported Thursday. The official Xinhua news agency said Wang Zhendong, who had been found guilty of fraud and sentenced to death in February 2007, was executed in Liaoning Province on Wednesday.
Wang, chairman of Yingkou Donghua Trading Group, had promised returns of up to 60 percent for investors who purchased ant-breeding kits from two companies he ran.
Ants are used in some traditional Chinese medicinal remedies, which can fetch a high price. Wang sold the kits, which cost $25, for $1,300, the local news media reported earlier. Wang attracted more than 10,000 investors from 2002 to June 2005, when investigators shut down his companies. The closure of his business set off a panic among small-time players who saw their life's savings disappear overnight.
November 27, 2008
Sentencing thanks and holiday reform wishes...
My only post today will be this one expressing thanks for the various developments and forces that are now converging to make me hopeful (though not yet fully optimistic) that the United States is on the cusp of a new era of sentencing law and policy in which "smart-on-crime" reforms will slowly undo some of the "tough-on-crime" excesses of the last quarter-century.
For anyone visiting this blog during a break from turkey and stuffing, I hope you might use the comments to express either sentencing thanks or holiday sentencing reform wishes. Sadly, there are lots of depressing stories that surround modern sentencing law and policy. Thus I am eager for readers to help me kick off this holiday season with thanks for effective sentencings past and hopes for a better sentencing future.
Happy Thanksgiving everyone.
November 26, 2008
NYU Brennen lecture on evidence-based sentencing
I am pleased to discover that, just in time for my turkey day reading pile, Justice Michael Wolff's article in the NYU Law Review on evidence-based sentencing reform is available on-line at this link. Justice Wolff's article is titled "Evidence-Based Judicial Discretion: Promoting Public Safety Through State Sentencing Reform," and here is the abstract:
In this speech delivered for the annual Justice William J. Brennan, Jr., Lecture on State Courts and Social Justice, the Honorable Michael Wolff offers a new way of thinking about sentencing. Instead of attempting to limit judicial discretion and increase incarceration, states should aim to reduce recidivism in order to make our communities safer. Judge Wolff uses the example of Missouri’s sentencing reforms to argue that states should adopt evidence-based sentencing, in which the effectiveness of different sentences and treatment programs are regularly evaluated. In presentencing investigative reports, probation officers should attempt to quantify — based on historical data — the risk the offender poses to the community and the specific treatment that would be most likely to prevent reoffending. Judges, on their own, lack the resources to implement all of these recommendations; probation officers and others involved in sentencing should receive the same information — risk assessment data — and their recommendations should become more influential as they gain expertise.
Georgia high court finds mandatory life term for failure to register unconstitutionally excessive
The Atlanta Journal-Constitution has this article reporting on an important ruling yesterday in Georgia. The article is headlined "State Supreme Court: Sentence for sex offenders overruled; Life in prison breaks Eighth Amendment," and its provides an effective and detailed summary of the court's work:
The Georgia Supreme Court on Tuesday struck down another provision of the state’s tough sex-offender law, calling mandatory life sentences for offenders who fail to register a second time “grossly disproportionate” punishment.
In a 6-1 decision, written by Justice Robert Benham, the court said the life sentence imposed upon 26-year-old Cedric Bradshaw of Statesboro violates the Eighth Amendment’s guarantee against cruel and unusual punishment. “We conclude the imposition of a sentence of life imprisonment is so harsh in comparison to the crime for which it was imposed that it is unconstitutional,” Benham wrote....
On Tuesday, the court ordered Bradshaw, who tried repeatedly to find a place to live without breaking the law, to be re-sentenced. His lawyer, circuit public defender Robert Persse, applauded the ruling. “The state’s penalty provision was excessive and clearly disproportionate to the offense in question,” he said....
In his ruling, Benham noted that someone convicted of voluntary manslaughter or aggravated assault with the intent to murder, rob or rape can receive a sentence as lenient as one year.
Benham also compared Georgia’s mandatory life term with punishment called for in 23 other states. Of the others, three states call for a maximum punishment of two years; 12 call for sentences of up to five years; six provide maximum terms of 10 years; two allow up to 20 years; and New Hampshire calls for a minimum seven-year sentence, Benham wrote. “Georgia’s mandatory punishment of life imprisonment is the clear outlier, providing the harshest penalty and providing no sentencing discretion,” Benham wrote. “This gross disparity between Georgia’s sentencing scheme and those of the other states reinforces the inference that [Bradshaw’s] crime and sentence are grossly disproportionate.”
Chief Justice Leah Ward Sears, in a concurring opinion, said life sentences “should be reserved for society’s most serious criminal offenders … Bradshaw’s failure to register as a sex offender, when his underlying crime only landed him in jail for five years, is not the kind of crime a civilized society ought to require him to pay for with his life.”
Justice George Carley issued the lone dissent, calling the decision a “monumental abuse of this court’s authority to determine the constitutionality of legislation.” The Legislature’s amendment in 2006 calling for the mandatory life term “constitutes the clearest and most objective evidence of how society views a punishment,” he wrote.
The Supreme Court of Georgia's ruling in Bradshaw v. State is available at this link. Writing at Sex Crimes, Corey Yung here asserts that "the majority is exactly right on this one." I concur and I hope this ruling will embolden other courts to be more deliberative in discharging the constitutional duty to assess whether and when extreme terms of imprisonment are constitutionally excessive.
November 26, 2008 in Examples of "over-punishment", Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (3) | TrackBack
New risk-oriented sentencing law operative in Pennsylvania
This local article from Pennsylvania provides an effective review of a notable new sentencing law that its now operative in the Keystone state. Here are some excerpts:
Local crooks in the big house now have a better reason to change their ways. The state's Recidivism Risk Reduction Incentive Act went into effect this week. It means many nonviolent offenders, such as drug users and serial shoplifters sentenced to a state prison term, must be given a third, incentive-based sentence along with their minimum and maximum sentence.
For court staff, the new law means a lot of math: The RRRI sentences would be equal to three-fourths of the minimum sentence imposed when the minimum sentence is three years or less, or five-sixths of the minimum sentence if the minimum sentence is more than three years. Inmates must complete programs like anger management and substance abuse counseling to meet the terms of their RRRI. It would be up to the state Parole Board to decide if they are successful.
“This is one to watch,” said Bucks County President Judge David Heckler. “This is something that holds them accountable, but also provides them with the tools they need to successfully reenter society.”...
Even before defendants can begin any of the court-ordered programs judges tack onto their sentence, they must go through a lengthy classification process to determine which of the state's 27 prisons is the best fit for them....
Whether the RRRI act will go smoothly remains to be seen. Although the new law went into effect Nov. 24, an education plan for lawyers and judges is in the works. To be eligible for an RRRI sentence, defendants must meet [many] requirements.... The RRRI law is modeled after a successful New York program. Lawmakers will monitor the program for the next two years and make changes, if needed.
Nebraska litigation over setting minimum sentencing terms
The AP reports here on litigation in Nebraska over sentencing authority to set minimum terms. Here are the basics:
The Nebraska Supreme Court is again being asked to decide whether judges are usurping the state Board of Parole by sentencing people to minimum terms of life in prison. The court is set to hear arguments December 4th in the appeal of Terrence Moore, who has been sentenced three times for killing two Omaha residents. He is now serving a life sentence for the 2005 crimes.
November 25, 2008
Michael Vick gets suspended sentence after state dogfighting plea
A prominent federal defendant is back in the news today after a state plea and sentence. This local article provides the basics:
Michael Vick entered a guilty plea to state dogfighting charges this morning. In a plea agreement that was signed before his court appearance, Vick will receive a three-year suspended prison term and a $2,500 fine. He also received four years probation. The fine will be suspended if Vick pays court costs and maintains good behavior for four years.
Vick did address the court with a short statement. “I would like to apologize to the court, my family and to the kids that I let down as a role model. I’m very remorseful for my actions,” he said....
Last Thursday, the quarterback was moved from Leavenworth, Kansas, where he is serving a 23-month federal sentence on felony charges related to dogfighting. He was in Hopewell Regional Jail before coming to court here.
Vick is scheduled to be released from federal prison July 20, 2009. If his state case is completed, he would become eligible to participate in the Federal Bureau of Prisons re-entry program. The program could include an early release and a stay at a halfway house for up to six months.
New article asserting Commerce Clause problems with federal Sex Offender Registration and Notification Act
Professor Corey Rayburn Yung has this important new article posted on SSRN, titled "The Sex Offender Registration and Notification Act and the Commerce Clause." Here is its abstract:
In 2006, the Sex Offender Registration and Notification Act ("SORNA") created a new federal crime of "failure to register" which is punishable by up to ten years imprisonment. Since that time, sex offenders across the country have been prosecuted even though the offenders had no prior connection to the federal criminal justice system. For almost all of the prosecutions under SORNA, the argued jurisdictional basis for federal prosecution has been that the sex offender travelled across state lines. Based upon this travel, which is an element of the crime of failure to register, the government has argued that the new registration crime is justified under Commerce Clause authority. An overwhelming majority of courts that have addressed Commerce Clause challenges have accepted the government's argument that interstate travel is a sufficient jurisdictional hook. However, a careful examination of existing Commerce Clause law demonstrates that these courts are mistaken. For the Commerce Clause to have any meaning and for the decisions in Lopez and Morrison to make sense, the alleged interstate travel must be connected to the underlying offense in fact and time. Despite the limitations of prior Supreme Court precedent, courts have enabled the government to prosecute sex offenders who crossed state lines years before SORNA was even enacted. Further, courts have not required any showing that the travel had any connection to the alleged offense of failing to register. While some have argued that the decision in Raich effectively ended the federalism revolution, SORNA expands federal jurisdiction into entirely new territory. As a result, this article concludes that courts should dismiss most indictments under SORNA based upon a lack of federal jurisdiction and/or Congress should amend SORNA to properly reflect the jurisdiction authorized under existing precedent.
Ohio poised to continue to be a national leader in executions
One notable aspect of the modern death penalty is the concentration of executions in Texas and other southern states (as detailed in this DPIC chart). However, Ohio has been a recent outlier, with 20 execution over the last five years. And this new AP article suggests that Ohio is poised to continue its leading role in national execution realities:
Ohio has between 15 and 20 inmates who have exhausted their appeals and are probably eligible — or "ripe" in the language of attorneys — for an execution date, according to both the State Public Defender's Office and the Ohio Attorney General.
The number is unprecedented for a state that has executed 28 inmates since 1999 but which still has a majority of its original death row inmates behind bars. There are 177 men and two women currently on death row. "We haven't had this kind of situation in Ohio before where we've had this many cases all ripe," Matt Kanai, head of the Attorney General's capital crimes unit, said Monday.
I suspect that even most death penalty activists are not fully aware of Ohio's new leading role in the modern application of capital punishment in the United States. In addition, these development are especially interesting against the backdrop of the state's evolution from red to blue in the last few elections.
Sixth Circuit isn't cruel to variance based on co-defendant disparity
The Sixth Circuit affirmed a district court's below-guideline sentence in notable opinion Monday in US v. Presley, No. 07-1147 (6th Cir. Nov. 24, 2008) (available here). After reading this opinion, prosecutors may check into heartbreak hotel, while defendants concerned about the jailhouse rock. Here is the start of the hound-dog opinion that sentencing judges may come to love tenderly:
Plaintiff-Appellant the United States of America appeals the district court’s resentencing of Defendant-Appellee Keith Presley to 120 months of incarceration, a downward variance from his Guidelines range of 360 months to life. Presley and his co-defendant, Kevin Davis, were found guilty of various counts arising from a drug and money-laundering conspiracy, and both were sentenced to 360 months of incarceration. In United States v. Davis, 430 F.3d 345 (6th Cir. 2005), we considered Presley’s and Davis’s appeals of their convictions and sentences. We affirmed Presley’s conviction, but because certain evidence against Davis was obtained in violation of the Fourth Amendment, we reversed the district court’s denial of Davis’s motion to suppress and remanded for a determination of whether Davis’s conviction should stand. We vacated both Presley’s and Davis’s sentences and remanded for resentencing in light of Booker. On remand, the district court made a downward variance based on the disparity between Presley’s Guidelines sentence and the 96-month sentence that Davis received pursuant to an agreement with the government. In this appeal, the government argues that the district court erred in reducing Presley’s sentence based on the sentencing disparity, because Presley and Davis were not similarly situated on remand. Because Presley’s sentence is both procedurally and substantively reasonable, we AFFIRM.
November 24, 2008
Prez Bush issues (first?) set of lame-duck pardons and commutations
This afternoon President George Bush granted 14 pardons and two commutations. The list of recipients, with details of their crimes, can be found in this press release. Commentary on these clemency grants can be found at Pardon Power and TalkLeft and The Volokh Conspiracy.
Lots for sentencing fans in Harvard Law Review SCOTUS issue
As all top-shelf law geeks know, online the November issue of the Harvard Law Review is always devoted to the Supreme Court's prior Term work. And that issue is now availabel online at this link.
Sentencing fans will find lots worth reading in this new HLR issue: in addition to a bunch of professorial commentary about the Heller Second Amendment case, this issue includes student comments on two capital sentencing cases Baze v. Rees and Kennedy v. Louisiana, and also student comments on other important sentencing (or sentencing-related cases) like Kimbrough v. United States and Danforth v. Minnesota.
Holiday travel and other matters may keep me from consuming this always great HLR issue in full anytime soon. I would thus be grateful for reader commentary on which piece are must-read material.
Notable split decision from Eigth Circuit on harmless error sentencing review
The Eight Circuit has an interesting and thoughtful discussion of sentencing review today in its split decision in US v. Henson, No. 07-1993 (Nov. 24, 2008) (available here). This final paragraph of the dissent by Judge Shepard provides an effective summary of what gets debated in the opinion:
In sum, absent significant procedural error, the sentencing explanation given by the district court in this case might be sufficient. However, the district court committed the significant procedural error of presuming Henson’s Guidelines range to be reasonable, burdening the government with demonstrating the error’s harmlessness, i.e., that the district court did not rest Henson’s very-bottom-of-the- Guidelines-range sentence on the presumption . The majority agrees but finds that the government made the requisite showing by pointing to the district court’s apparent attempt to innoculate Henson’s sentence from reversal by stating that, even without the presumption, it would impose an identical sentence. In my view, more explanation is required to remove the taint of the district court’s significant procedural error. Because I find the district court’s bare statement insufficient to demonstrate harmlessness, I would vacate Henson’s sentence and remand for resentencing.
Great state-focused coverage of federal Second Chance Act
A helpful reader pointed me to this effective and timely coverage today of the Second Chance Act at Stateline.org. The piece is headlined "States want Second Chance Act funded," and here is how it begins:
With correctional facilities around the country teeming with repeat offenders, state and local officials are hoping the Second Chance Act — a federal law signed by President Bush in April to help keep former prisoners from committing new crimes — will be a priority under the incoming Obama administration.
The act, which Congress approved with widespread bipartisan support, authorizes $165 million in annual grants to states, localities, nonprofits and religious groups to build programs that help current and ex-offenders find jobs and housing, overcome drug and alcohol addictions, receive mentoring and return to society as law-abiding residents.
When he signed the bill into law, President Bush called it a sign of support for the roughly 700,000 people who are released from state and federal prisons each year. Federal statistics that show more than two thirds of all those released from prison are rearrested for serious crimes within three years.
That has resulted in surging prison populations — and corrections costs — for many states. Corrections trails only health care, education and transportation among state expenses, costing states nearly $50 billion last year.
Despite the new law’s promise of federal dollars to fund so-called “reentry” initiatives, Congress has not appropriated the money. State and local lawmakers, corrections officials, advocacy groups and others now are pushing the incoming Congress — and the administration of President-elect Barack Obama — to provide funding, perhaps in a spending measure that could come up for debate as early as January.
What if no lower court judges participate in a "Second Amendment Revolution"
Thanks to How Appealing, I saw this article in the latest issue of the Harvard Law Record headlined "Profs: District of Columbia v. Heller is a 'Second Amendment Revolution.'" Here is how the piece begins:
Calling the Supreme Court's decision in District of Columbia v. Heller a "Second Amendment revolution," Profession Cass Sunstein '78 declared in a panel discussion about the landmark Supreme Court decision on Tuesday, November 18. Sunstein was joined by fellow HLS Professor Lani Guinier and Yale Law School Professors Akhil Amar and Reva Siegel. The panel was sponsored by the Harvard Law Review, whose November 2008 issue focuses on Heller, which struck down the District of Columbia's ban on handguns. Sunstein stated, "For better or for worse, there has been a sea change with respect to the right to bear arms comparable to civil rights, sex discrimination, and gay rights."
With all due respect, Professor Sunstein, I blogged through a Sixth Amendment revolution with Blakely; I knew Blakely was revolutionary because lower courts started striking down all sorts of federal and state laws based on Blakely; this constitutional sentencing revolution had been a friend of mine. Professor, Heller is no Second Amendment revolution.
Pardon the weak effort to paraphrase Senator Lloyd Bentsen's famous debate line, but I continue to be annoyed and aggravated by all the aggrandizement of Heller and its so-far-inconsequential Second Amendment holding. As I have suggested in prior posts, I will only believe Heller is important and revolutionary if/when lower court judges start striking down or limiting the reach of broad federal and state gun laws and restrictions based on its Second Amendment ruling. Until then, I do not think many serious practicing lawyers should put much stock in lots of law professors opining about how significant the Heller decision is.
Some related posts on the Heller's (lack of) importance:
- Is anyone (other than me) discussing the apparent insignificance of Heller?
- District Court rejects Second Amendment claim from misdemeanant
- Another (too?) brief opinion rejecting misdemeanant's Second Amendment claim
- Still more proof that federal courts have no real interest in gun rights
- Has there been a single pro-gun-rights rulings in lower courts since Heller?
- Justice Scalia sells out felon gun rights, but on what basis exactly?
- An argument that the Second Amendment and Heller should help Weldon Angelos
UPDATE: Not minutes after finishing this post I noticed that Eugene Volokh has posted here on another lower court ruling that basically declares that Heller provides no impediment to federal efforts to prohibit and criminally punish any sort of gun possession by anyone addicted to any controlled substance. How revolutionary!
November 23, 2008
Interesting reflections on Obama appointees from drug policy reformers
The Drug War Chronicle has this interesting new feature piece titled "Obama's Appointees Raise Questions in the Drug Reform Community." Here are snippets from the start and end of the piece:
Like other interest groups, the drug reform movement has the Obama transition under a microscope, searching for clues on the new administration's intentions as it scrutinizes those appointments for positions that are going to be key to advancing the cause. Some of the Obama transition team's early moves have some drug reformers sounding alarm bells, but other reformers -- not so much....
The reform community should not be freaking out, agreed Eric Sterling, who served as counsel to the House Judiciary Committee in the 1980s and now heads the Criminal Justice Policy Foundation. Instead, it should be trying to flex its muscles. "I think the reform community is way overreacting and, more importantly, not taking the initiative," he said "Reform leaders ought to be asking themselves what letters they've written to President-elect Obama, what letters to the editor they've penned, what op-eds they've submitted. Is the movement doing anything other than passively reacting?" he asked....
"We have to build the movement. We keep seeing the same 300 people at the conferences, maybe 1,000 if you're talking about the harm reduction conferences. No one is going door to door in the black community talking about how the drug war is undermining public safety and its relationship with the police. No one is talking to the unions. We've done well on the education part of our issue, but we haven't done well in developing a political power base, and until we do that, we won't get reform."
Some recent related posts on the Obama transition and criminal justice issues:
- Lots of buzzing around Eric Holder as the next US Attorney General
- Any early federal sentencing thoughts on Eric Holder, the next U.S. Attorney General?
- Three late afternoon thoughts on the Holder pick: race, tough and tech
- Looking at control of federal prosecutors as we look toward a new administration
- How a new administration is likely to impact federal sentencing practice
- Why federal sentencing reformers must focus on the USSC and lower courts
- Are we on the verge of a new changed era concerning federal sentencing law and policy?
- "Smart on Crime: Recommendations for the Next Administration and Congress"
- A criminal justice blueprint for the new Prez that I hope gets followed
"From my cell, I scent the reeking soul of US justice"
The title of this post is the title of this piece appearing in London's Sunday Times authored by Lord Conrad Black. Here are excerpts from today's must-read:
I write to you from a US federal prison. It is far from a country club or even a regimental health spa. I work quite hard but fulfillingly, teaching English and the history of the United States to some of my co-residents. There is practically unlimited access to e-mails and the media and plenty of time for visitors....
US federal prosecutors, almost all of whom would be disbarred for their antics if they were in Britain or Canada, win more than 90% of their cases thanks to the withering of the constitutional guarantees of due process – that is, the grand jury as an assurance against capricious prosecution, no seizure of property without just compensation, access to counsel, an impartial jury, speedy justice and reasonable bail....
The system is based on the plea bargain: the barefaced exchange of incriminating testimony for immunity or a reduced sentence. It is intimidation and suborned or extorted perjury, an outright rape of any plausible definition of justice.
The US is now a carceral state that imprisons eight to 12 times more people (2.5m) per capita than the UK, Canada, Australia, France, Germany or Japan. US justice has become a command economy based on the avarice of private prison companies, a gigantic prison service industry and politically influential correctional officers’ unions that agitate for an unlimited increase in the number of prosecutions and the length of sentences. The entire “war on drugs”, by contrast, is a classic illustration of supply-side economics: a trillion taxpayers’ dollars squandered and 1m small fry imprisoned at a cost of $50 billion a year; as supply of and demand for illegal drugs have increased, prices have fallen and product quality has improved....
I would be distinctly consolable if the United States really was in decline and I have more legitimate grievances against that country than do The Guardian or the BBC, but it is still a country of incomparable vitality even as its moral, judicial soul atrophies and reeks.
Gosh knows I really enjoy the musings of federal defendants not afraid to speak their minds like Lord Black (and the full draft of these latest musings can be found at this link). I am not sure that this fascinating commentary from a federal prison will help Lord Black in his pending request for executive clemencyfrom President Bush, but one never knows precisely what is likely to prompt an out-going executive to exercise his absolute and unreviewable clemency powers.
Effective editorial noting bills coming due for Califorinia's toughness
This morning's Sacremento Bee has this effective editorial headlined "Time to pay for getting tough on crime." Here are some excerpts:
There's an old kids' joke, "How do you know if there's an elephant under your bed?" Answer: "Your nose is touching the ceiling."
As California lawmakers and the governor grapple with the reality of multibillion-dollar deficits stretching into the future, they can no longer ignore the elephant in the rotunda: prison spending. That elephant has become a mammoth because lawmakers over the last 25 years have created longer and longer sentences and reduced the ability of prisoners to shave off prison time for good behavior.
The charts show the result. A greater proportion of the state's population now is in prison and a greater share of the prison population is aged. Older people have greater health needs and so cost a lot to keep in prison. They are taking up beds, producing overcrowded prisons.
Those in prison aren't eligible for Medicare, the federal health program for the nation's elderly. Nor are they eligible for Medi-Cal, the health program for the poor in which costs are shared between the state and the federal government. So the entire cost of health care for older, sick prisoners falls on the state. All of this is now in the federal courts because the state has refused to create alternatives for dealing with feeble, chronically ill prisoners to reduce prison population – or to pay for building facilities to house these prisoners....
It's no mystery what prevents the state from dealing with this issue: Politicians of both parties fall over each other to see who's tougher on crime. The latest is Attorney General Jerry Brown asserting, falsely, that if Californians want "top-drawer care," they have to "go to prison." You can tell who's running for governor in 2010.
So here's another joke on California. What did lawmakers and the governor say when the elephant moved into the Capitol? Nothing! They didn't notice. Except this is no longer a laughing matter. Our nose is flat against the ceiling already, and the elephant is still growing.