December 3, 2008
Another reminder of the crime dog that did not bark in the 2008 election season
Since one senate race was only decided last night and another one remains unresolved, this commentary I just noted on SSRN still is timely. The piece is by Professor Stephen Saltzburg from the Summer 2008 issue of the ABA's Criminal Justice magaine, and it is titled "Where is Criminal Justice in this Presidential Year?". Here is the abstract:
This article notes that throughout the presidential campaigns there has been little emphasis on criminal justice and few serious proposals by candidates for changing or improving the way in which the federal government enforces criminal law. There has been little discussion about the respective roles that the federal government and the states should play in law enforcement. The author calls for the next president to convene an inclusive national congress on criminal justice. He encourages the president to bring together prosecutors, defense counsel, judges, legislators, law enforcement, correctional officials, probation and parole officers, academics, victims advocacy groups, other public interest organizations, and ordinary citizens to reexamine and establish our criminal justice priorities, to propose reforms that will identify more clearly those whose criminal acts warrant long prison sentences and those who are better served by treatment.
Lots of notable sentencing action in the circuit courts
Though sentencing action and issues outside of court have captured a lot of my attention lately — on topics ranging from clemency chutzpah to foolish footballers to paralyzed porn pursuers — there has been plenty of noteworthy sentencing action in the federal circuit courts of late. Helpfully, How Appealing has assembled links to both the rulings and media coverage of two of the biggest circuit decisions recently that should be of greatest interest to sentencing fans.
Specifically, as detailed here, the Second Circuit yesterday issued a notable sentencing opinion concerning guideline issues in a high-profile terrorism case. And, as detailed here, the Tenth Circuit yesterday issued a notable sentencing opinion concerning the appellate rights of victims under the federal Crime Victims Rights Act.
December 2, 2008
Lots for sentencing fans in latest issue of OSJCL
I am pleased to report that the Fall 2008 issue of the Ohio State Journal of Criminal Law is now available on-line here, and it includes a number of terrific pieces. All the articles and many of the commentaries ought to be of particular interest to sentencing fans.
The Fall 2008 OSJCLissue includes two great symposia shepherded by two great guest editors: Professor Wayne Logan assembled a set of articles on "Sex Offender Law and Policy," and Professor Jeffrey Fagan assembled a set of articles "Legitimacy and Criminal Justice."
In addition, this issue includes commentaries on an array of topics and a "Term Paper" by Professor Heidi Hurd, titled "Death to Rapists: A Comment on Kennedy v. Louisiana."
Be sure to check out the new OSJCL issue and also all the other great OSJCL content available in full text at this on-line archive.
Juror says publicly that she wanted MySpace bullying defendant sent to prison
Late last week, I asked in this post, "What sentence would you impose on Lori Drew, the MySpace bullying defendant?". Today, thanks to this article from the St. Louis Post-Dispatch, we learn that at least some of the juror in the case hope to see Drew in prison garb:
The forewoman of the jury that convicted Lori Drew of misdemeanors for cyber bullying said Monday that a majority of the panel favored a felony conspiracy verdict that could have sent her to prison.
Most jurors believed a felony conviction would send a message that Internet sites should be better regulated for fraud, the forewoman, Valentina Kunasz, said in a telephone interview. But four jurors would not be convinced, Kunasz said, blocking a felony verdict.
"I would have liked to see this lady go to jail to change the way Internet sites are run," said Kunasz, 25, a former hairdresser who lives in Los Angeles County.
Last week in Los Angeles, the jury convicted Drew, 49, of O'Fallon, Mo., on three misdemeanor charges of illegally accessing a computer. It found her not guilty of more serious felony versions of those charges, and deadlocked on the felony count of conspiracy.
If the convictions hold, Drew likely faces little more than probation. U.S. District Judge George Wu has not yet ruled on motions asking that he use his power to acquit Drew of all charges despite the jury verdict....
Kunasz described herself as among eight jurors who believed that Drew acted maliciously. "I didn't think she intended to have this girl kill herself," Kunasz said. "But she knew she was suicidal, depressed and taking medicines, and still continued to pursue this act."
It didn't matter much whether Drew typed the messages to Megan, or whether it was Sarah or Grills, Kunasz said. Drew didn't stop it, and that was malicious. "What is a 47-year-old woman doing egging on her child and employee to do this?" the juror asked.
Four holdouts on the 12-member jury believed that Drew set up the MySpace page to learn what Megan was saying about Drew's daughter, not to harm her, Kunasz said. "I wish that those four other jurors would have had a different opinion," she said. "But they thought what they thought, and they were entitled to that." None of the other jurors could be reached for comment.
This article and the statements from the jury forewoman are especially interesting (and somewhat peculiar) given that Drew still faces a prison term of up to 3 years for her three misdemeanor convictions. Regular readers may recall another high-profile defendant (Wesley Snipes) who got 3 years in prison for three federal misdemeanor convictions even after he was acquitted of more serious federal tax evasion charges.
I sense from this article that the jurors (or at least the forewoman) thought that a felony conviction would essentially ensure some prison time for Drew, and also thought misdemeanor convictions would essentially preclude a prison term. Of course, this is not true: Drew could still have gotten a sentence of probation even if convicted on all counts, and she might still get sentenced to prison despite her acquittal on felony counts. But it is not surprising that jurors misunderstand federal sentencing realities given that they typically are not allowed to be informed of the possible sentencing consequences of their decisions.
Crime victims and technocorrections
This new article from my local paper, headlined "Ohio upgrades criminal tracking system for victims," shines an effective spotlight on how concerns for crime victims will further propel the move toward technocorrections. Here are the basics:
Crime victims will be able to find out when an inmate is released with the help of upcoming changes to Ohio's criminal tracking system. State officials say a $100,000 grant from the U.S. Department of Justice will allow Ohio to upgrade its current tracking system by 2010.
"It will empower victims and allow them more control over their own situation and safety," said Matt Hellman, administrator of the Ohio attorney general's office of victim services. "If they need to, they can make plans for their own safety and for the safety of friends and family."
Victims already can check the status of current inmates still in prison through the Ohio Department of Rehabilitation and Correction's internal tracking system and by phone and e-mail through a national automated information and notification network. That system provides information on changes to an inmate's status, including releases, transfers, escapes and deaths.
The enhancements to the system - known as Victim Information and Notification Everyday, or VINE - will allow victims to follow offenders' movements after they're released on parole or probation. The system also tracks inmates who are moved to the state's intensive prison program, which puts prisoners through specialized education and treatment, allowing them to possibly earn earlier release dates....
Ohio was one of the first states to offer the system, implementing it in 1998, according to the state attorney general's office. State officials say the system was used nearly 1 million times in 2007 to check on the custody status of Ohio inmates or receive notification of changes in that status. The program is a free and anonymous computer-based service available to anyone 24 hours a day.
More proof politicians are very compassionate toward criminals ... who are fellow politicians
I am hoping readers might help me come up with a catchy word or phrase to describe the all-too-common phenomenon of "tough-on-crime" politicians becoming amazingly sympathetic to convicted felons who are fellow politicians. I would have liked to had such a term for President Bush, who showed his soft side when he commuted the sentence of his pal Scooter Libby, despite the fact that he has not shown any similar compassion toward thousands of other first offenders sentenced to prison for crimes arguably less serious than Libby's (such as Victor Rita and others noted in this post). And such a term now is needed to describe a number of prominent Senators who are seeking compassion for other prominent federal offenders.
First, consider the compassion now being expressed by Senator Orrin Hatch and other Republicans in this new Politico piece asking "Will Bush pardon Stevens?." Here are some particulars:
Sen. Ted Stevens (R-Alaska) hasn’t yet joined the gallery of notorious felons, small-time crooks and aggrieved innocents seeking pardons from President Bush, but it appears he’ll have the support of some of his soon-to-be-former colleagues if he does.
“He has served this country for over 50 years,” said Sen. Orrin G. Hatch (R-Utah), a widely respected member of the Judiciary Committee. “I think most anybody would probably say, ‘Yeah, he should be [pardoned].’ I think most anybody would say it’s fair to say that.” On Oct. 27, a District of Columbia jury convicted Stevens on seven counts of failing to report more than $250,000 in gifts and home renovations he received from 1999 to 2006. Stevens, 85, faces up to 35 years in prison if the conviction stands....
For Sen. Lisa Murkowski (R-Alaska), the case for a pardon for Stevens has already been laid out. It’s all right there in a letter that Stevens’ lawyers sent to Attorney General Michael Mukasey — one in which they laid out their allegations of prosecutorial misconduct before and during his trial. “I look at what has been outlined in this letter to the attorney general, and I think if President Bush were to consider it, I think there would clearly be grounds based on what I have seen to go ahead and do so,” Murkowski said of a pardon.
Murkowski emphasized that the decision to pardon is Bush’s alone but that there “were clear instances in that trial where the prosecutors clearly overreached, and as a consequence of that overreaching, you have a verdict that comes down, and now a good man — a man who has served his state and his country — is now looking to that forced retirement.”
The letter from Stevens’ attorneys to Mukasey doesn’t specifically request a pardon but rather seeks a Justice Department investigation into its prosecutors’ conduct.
Informed readers should see a special irony concerning Senator Murkowski's suggestion that prosecutorial "overreaching" provides clear grounds for a pardon. A concern about overzealous federal prosecutors was, of course, the rationale given by President Clinton for his notorious pardon of Marc Rich. Ah well, I suppose I am just naive to expect politicians to be even a little bit principled in this arena.
Second, lest anyone think only Republicans deserve a clemency chutzpa award, consider the public statements of Democratic Senator Dick Durbin urging commutation of the prison sentence of former Illinois Governor George Ryan. Here are details from this Chicago Tribune report:
Despite an acknowledged firestorm of criticism, Democratic Sen. Dick Durbin said Monday that he was asking President George W. Bush to commute the federal corruption sentence of former Republican Gov. George Ryan to time served as an act of compassion and mercy.
"For those who would argue that a commutation makes light of his crimes, it is clear that he has already paid a significant price and will continue to do so as long as he lives," Durbin wrote of Ryan in a letter to Bush. "Justice is a sword that should be tempered with compassion. Further imprisonment will not, in my opinion, serve the ends of justice."
The request by Durbin, the second-highest ranking Democrat in Senate leadership, met with support from Ryan's attorney, former Gov. Jim Thompson, but was assailed by the head of Ryan's prosecution team and some of the jurors who convicted him. "George Ryan's crimes were serious breaches of the public trust," said former Assistant U.S. Atty. Patrick Collins, who led the Ryan investigation. Collins questioned why Ryan was being "humanized" by supporters of a commutation over other inmates, including elderly prisoners or single parents.
Denise Peterson of Hawthorn Woods, who served on the federal jury that convicted Ryan in 2006 on federal fraud, racketeering and related charges, said a commutation would send the wrong message to politicians looking to abuse the public trust. "I think that once again politicians are getting special treatment because of who they are, and that's not how it should be," Peterson said. "I had a front-row seat, and I understand that he's guilty and he's not sorry. He should stay in jail."
Durbin said public officials should be held to a higher standard of public trust. But he said that while Ryan's case may be of a high profile, it was little different from the thousands of people whom his office has tried to help because they feel "they have not been treated fairly by our government."
"I will speak out for justice in each and every case," Durbin said. "Because George Ryan happened to be an elected official does not mean that I would ignore the plea of his wife and family."
Funny, I must have missed all the media reports of Senator Durbin publicly "speak[ing] out for justice in each and every case" in which a not-so-prominent federal defendant (like Victor Rita, for example) has "already paid a significant price" for crimes less serious than those committed by George Ryan.
UPDATE: For more packground on pardon issues and debate, ABC News has this new piece. Among other interesting parts of the ABC piece is this bit of empirics:
The president, who has a nearly unfettered constitutional power to pardon, has used it sparingly. He has granted fewer than 200 of 10,000 petitions filed in the past eight years.
Candidly, I would have guessed that the President would get more than 10,000 clemency petitions over two terms. Also, given that the Supreme Court gets nearly 10,000 petitions for certiorari each year and grants less than 100, this bit of data allows me to now say that a modern clemency petition has twice the change of success as a modern cert petition.
Privacy lawsuit brought against sex offender background checks in schools
This summer I blogged here about a notable new technology that some school systems have started using to try to prevent sex offenders from getting into schools. Now I see from this local Texas story, headlined "School safety check draws lawsuit: Couple objects to device that spots sex offenders by scanning licenses," that this new form of techno-security is now the subject of a lawsuit. Here are the specifics:
A background check system used by many Texas schools to spot visitors who are sex offenders is being challenged by two parents who say the process violates their privacy and other rights. Yvonne and Larry Meadows are suing the Lake Travis school district over a computer system that checks visitors against a sex offender database by scanning their driver's license. Visitors who don't consent can be turned away.
The federal lawsuit filed in November is believed to be among the first legal challenges to the policy in Texas. Houston-based Raptor Systems, which performs background checks for Lake Travis and 5,000 other schools nationwide, said it was unaware of similar lawsuits.
The Meadowses say the computerized checks violate their constitutional rights, including freedom to associate with their children at school and freedom from unreasonable search and seizure. Neither are listed in the national sex offender database.
Yvonne Meadows said she objected to Bee Cave Elementary School scanning her license because she was concerned about identify theft and a private company collecting her personal information. "Raptor sold (their system) on this 'registered sex offenders, we need to be on guard' idea, but it was primarily a visitor management system," she told the Austin American-Statesman in its Monday editions. The lawsuit seeks unspecified damages.
Lisa McBride, the lawyer for the Lake Travis school district, said the district thinks its system is reasonable and fully complies with state and federal law.
Some related posts:
- A private technocorrections development to watch for sex offenders
- Another example of the inevitability of technocorrections Are microchip implants for offenders inevitable?
December 1, 2008
NYC Mayor Bloomberg pushing for Plaxico Burress to get at least 3½ years in state prison, leading me to many questions
Thanks to the apparent foolishness of a prominent NFL player, the folks at Families Against Mandatory Minimums and at the National Rifle Association might have a new high-profile poster-child for their very different public policy causes. I am referencing, of course, the case involving New York Giants wide-receiver Plaxico Burress, whose major criminal law problems are well summarized in these snippets of this New York Times article (emphasis added):
Giants receiver Plaxico Burress was arraigned Monday in a Manhattan criminal court, charged with two separate counts of criminal possession of a handgun in the second degree after accidentally shooting himself in the thigh three days ago at a Midtown nightclub.
He faces a mandatory sentence of 3½ years in state prison, with a maximum of 15 years, on each count....
After a long day — during which Burress spent about five hours at the New York City Police Department’s 17th Precinct station house, where he likely posed for mug shots, was fingerprinted and sat for interviews with detectives — details of the shooting became clearer.
The police said that Burress arrived at the Latin Quarter nightclub in Manhattan on Friday at 11:30 p.m. with four others, including teammates linebacker Antonio Pierce and Derrick Ward. The other two members of their party were not football players, according to police. At 12:05 a.m., a single gunshot is heard.
The criminal complaint, released by prosecutors Monday, said that an onlooker saw Burress near the V.I.P. area of the club holding a drink in his left hand and fidgeting his right hand in the area of the waistline of his pants. The witness then heard a single “pop” sound before hearing Burress say, “Take me to the hospital.”
Burress was on the ground, with his legs shaking, when a bloody gun — a .40-caliber Glock pistol — fell out of his pant leg and onto the floor, the onlooker said. Later, Burress, who does not have a permit to carry a handgun in New York City, was treated and released at a hospital before returning to his home in Totowa, N.J.
On Monday, Mayor Michael R. Bloomberg harshly criticized Burress for carrying an illegal handgun; New York Presbyterian Hospital for failing to call the police of his gun-related injury, as city law requires; and the New York Giants, which also neglected to notify the authorities.
“Our children are getting killed with guns in the streets. Our police officers are getting killed with guns in the hands of criminals, and because of that, we got the State Legislature to pass a law that if you carry a loaded handgun, you get automatically 3½ years in the slammer,” Bloomberg said, speaking to reporters.... “I don’t think that anybody should be exempt from that, and I think it would be an outrage if we didn’t prosecute to the fullest extent of the law, particularly people who live in the public domain, make their living because of their visibility; they are the role models for our kids.”
Bloomberg said that the police did not find out about the incident until it was reported on TV, and that the Giants should have immediately notified the authorities of the shooting. He said the team had a responsibility to do so if their players want to be role models to the public....
Bloomberg also criticized the hospital for failing to call the police. “I think also it is just outrage that the hospital didn’t do what they’re legally required to do,” he said. “It’s a misdemeanor, it’s a chargeable offense and I think that the district attorney should certainly go after the management of this hospital.”
Wow! Though I do not teach my upper-level sentencing course until next semester, this high-profile case, with its many notable participants and many possible legal issues, sounds like a problem I might give on my final exam. Consider these questions right off the bat:
1. In light of the apparently undisputed facts, is there any legally justifiable way for NY state prosecutors to avoid seeking to convict Burress of the state crime which carries a mandatory minimum sentence of 3½ years in state prison?
2. Can and should Burress and his legal team raise a Heller Second Amendment right of self-defense claim in response to his criminal charges? Assuming the Second Amendment gets applied to the states (which seems very likely) and assuming Burress says he carries his gun for personal self-defense (which seems very plausible), anyone who talks seriously about a fundamental right of self-defense (like those at the NRA) ought to be looking to give Burress some help in this case.
3. Is Mayor Bloomberg already making it easier for Burress and his legal team (A) to argue he cannot get a fair trial in NYC, and/or (B) to suggest to the jury (directly or indirectly) that it should consider nullification in this case simply to avoid forcing Burress to go to state prison for 3½ years?
4. Can and should Burress and his legal team raise a head-on due process (or cruel and unusual punishment) constitutional challenge to the statutory mandatory minimum sentence in this case? In light of President-Elect Obama's stated expression of concerns about mandatory minimum sentencing statutes and the Supreme Court's ever-evolving sentencing jurisprudence, the time might be ripe for lawyers at FAMM and other public policy groups to start making a full-scale legal attack on the very constitutionality of mandatory minimum sentencing provisions. Perhaps this line of constitutional argument just got a prominent celebrity spokesman.
December 1, 2008 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Second Amendment issues | Permalink | Comments (20) | TrackBack
An understandable (but debatable?) child porn declination decision by federal prosecutors
A former student alerted me to this fascinating story from the Buffalo News, headlined "Quadriplegic spared prison in child porn case: U. S. attorney agrees to forgo prosecution." Though the headline provides the basics, here are some notable particulars:
When federal agents and prosecutors first learned about Wayne Schifelbine and his child pornography crimes, their inclination was to put him in prison for a long time.
But then agents discovered something else about the 43-year-old Allegany County man who was using a credit card to buy images from child porn Web sites: Schifelbine is a quadriplegic. He cannot walk, requires 24-hour nursing care and spends all his time in his bed or wheelchair.
After hearing about his physical disabilities, U. S. Attorney Terrance P. Flynn decided to offer the Belmont man an agreement that would carry no criminal conviction or prison time. Schifelbine, however, will forfeit $50,000 to the federal government and his use of the Internet will be restricted....
“Child pornography is a very serious crime that hurts children. But in this case, we came to the conclusion that no punishment in federal prison could compare to the punishment that has already been inflicted on this man,” Flynn said. “You could say that he’s already in prison for life.”
Schifelbine’s attorney, Joel L. Daniels, calls the case one of the saddest he’s seen in 44 years as a lawyer. Both he and Flynn also call it a classic illustration of the dark side of the Internet.
Schifelbine, a former factory worker who suffered severe spinal cord injuries in a 1999 construction accident, has no record of molesting children. He received and looked at child porn, but did not create the material. Even if he wanted to — which he does not — Schifelbine is physically incapable of molesting children, his attorney said....
Flynn, who usually takes a very hard line on child porn prosecutions, said he agreed with Daniels’ assessment of the situation. At the same time, Flynn emphasized that he does not condone the actions of Schifelbine or anyone else who looks at child pornography. “The men who buy or look at child pornography are the ones who create the market for it,” Flynn said. “Ultimately, the federal prison system could have made accommodations for this man. But our thought was, what purpose would that serve?”....
Schifelbine got a “substantial” financial settlement after his accidental fall, and paying the $50,000 forfeiture is not a problem for him, Daniels said.
I have no problem with the declination decision in this remarkable case, and I am always glad to hear stories about a federal prosecutor sensibly using his (unreviewable) discretion to make reasoned and reasonable sentencing decisions. That said, I find intriguing and debatable Flynn's suggestion that prosecuting and potentially imprisoning Schifelbine in this case would serve no purpose.
Many defendants, particularly white-collar, first offenders who have long lived law-adibing lives, often tell an array of sympathetic stories about their personal situation and family circumstances to argue that a prison sentence would serve no purpose. They often sensibly contend that the ordeal of federal prosecution and the collateral consequences of a conviction ensure they never will or can commit future crime. But federal prosecutors often respond that a long prison sentence for such an offender will serve the important goal of general deterrence even if there is no risk of future offense by the defendant.
It seems that Flynn might have made a general deterrence argument to justify prosecution of Schifelbine case. If (and when?) the national media began to discuss a federal prosecutor's decision to prosecute even a quadriplegic for receipt of child pornography, other potential person who might not realize the seriousness of this crime would be sure to take notice. And if this seems harsh, do not forget the case of Danny Espinoza (blogged here), a quadriplegic subject to criminal prosecution for his role in the very accident that led to his disability.
I would like to thank the ABA, Justices and judges, sentencing commissions, criminals and their lawyers....
Of course, it is an honor just to be nominated. But, since nominations were not ever made public, it is more exciting to win again a place on the ABA's list of the best legal blogs. This poston the ABA's blog, titled "50 New Sites Make 2nd Annual ABA Journal Blawg 100," provides the basic back story:
On our second annual list of the best legal blogs, just half of last year’s honorees make a return appearance.
What explains the high turnover? For one thing, every day new legal blogs are started, and some existing blogs—including some that appeared on last year’s list—cease to be updated regularly. Plus, some of the upstart blogs are just plain better than some that made the cut last year.
This year, blogs that aren’t updated at least weekly—no matter how interesting—often didn’t make the grade. We put a premium on blogs that broke news in 2008, or were among the first to provide trenchant analysis of one or more breaking legal news stories.
All kidding aside, I am grateful and honored that the folks at ABA put this blog on its Top 100 list in the crime category for the second year in a row. The full list of the ABA Journal Blawg 100 can be accessed at this link, where one can also find links to some fun blog feature stories.
Lots of clemency and pardon power news and notes
Thanks to lots of good work around the blogosphere, one can keep up effectively with lots of news and notes about the clemency and pardon power:
- From How Appealing here, "Second Circuit holds that The Associated Press has no right to access John Walker Lindh's petitions filed with the U.S. Department of Justice's Office of Pardon Attorney seeking a reduction in his twenty-year prison sentence"
- From Pardon Power here, "Scholarship: Tis' The Season to be Pardoned"
- From the WSJ Law Blog here, "Pardon After-Party: Clemency for Man Who Maintained Innocence"
President-Elect Obama officially names Eric Holder as his AG pick
As detailed in this CQ Politics entry, the likely next U.S. Attorney General was officially named today: "President-elect Barack Obama on Monday tapped former Deputy Attorney General Eric H. Holder Jr. to take the top spot in the Justice Department." Here are some other notable snippets from the CQ report:
Holder would be the first black attorney general. The Senate Judiciary Committee will vet Holder for the post. Several Republicans on the panel have already voiced support for him.
To be sure, Holder will face renewed questions about his role in Clinton’s pardon of fugitive financier Marc Rich in 2001. Rich’s ex-wife, Denise, donated heavily to Democratic causes, including Clinton’s presidential library and Hillary Rodham Clinton ’s 2000 Senate campaign. Holder signed off on the pardon. Holder told the House Government Reform Committee in early 2001, “It is now clear, and this is admittedly hindsight, that we, at the Justice Department, and more importantly, former President Clinton, the American public, in the cause of justice, would have been better served if the case had been handled through the normal channels.”
Senate Judiciary Chairman Patrick J. Leahy , D-Vt., has said that Clinton, not Holder, bears the responsibility for the Rich pardon. Leahy has predicted a “lopsided vote” to confirm Holder.
Some prior posts on the Obama transition, the Holder pick and federal 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
- Interesting reflections on Obama appointees from drug policy reformers
"Federal judges to rule on California prison crowding"
The title of this post is the headline of this AP piece reporting on an expected ruling concerning Califorina's prison problems. Here is how the article begins:
California's day of reckoning has finally come for three decades of tough-on-crime policies that led to overcrowded prisons and unconstitutional conditions for inmates. The federal courts have already found that the prison system's delivery of health and mental health care is so negligent that it's a direct cause of inmate deaths.
A special three-judge panel reconvenes Tuesday and is prepared to decide whether crowding has become so bad that inmates cannot receive proper care. If they do, the panel will decide if lowering the inmate population is the only way to fix the problems. That could result in an order to release tens of thousands of California inmates before their terms are finished, a move Gov. Arnold Schwarzenegger and Republican lawmakers say would endanger public safety.
November 30, 2008
How big is the risk that victim videos are more prejudicial than probative?
This article appearing yesterday in the Washington Post discusses the growing trend of using "victim videos" in criminal cases. The article is headlined "Poignant Videos of Victims Valid in Court: Justices Decline to Weigh Use of Such Portrayals," and here are some excerpts:
Fueled by technology and a powerful victims' rights movement, "victim impact videos" are becoming staples in criminal trials nationwide. The increasingly sophisticated multimedia presentations depict victims from cradle to grave, often with soft music in the background, tugging on the heartstrings of jurors. Defense lawyers say the videos are highly prejudicial and have sought to have them banned.
But the Supreme Court this month declined to hear challenges to two such videos, including one of Sara Weir, a dark-eyed 19-year-old who was raped and murdered in 1993. The video contains more than 90 photos of Weir and is set to the haunting tones of Enya.
As a result of the court's decision, experts say the use of such videos will probably accelerate in coming years. "The publicity from the Supreme Court cases is going to make more victims and prosecutors aware of the possibility of technology-aided victim impact statements," said Margaret Garvin, executive director of the National Crime Victim Law Institute. "And I think that's a good thing."
Prosecutors vigorously defend the videos, which are presented as part of "victim impact evidence" in death penalty and non-capital homicides and are usually put together by families, sometimes with help from law enforcement or funeral homes. With defendants able to present extensive "mitigating evidence," prosecutors say multimedia is often the best way to document the life that was extinguished and the pain of those left behind.
While the Post piece provides a somewhat pro-victim perspective on victim videos, T Chris here at TalkLeft provides a defense view on problems with victim videos.
Because I am a strong believer in victims' rights at sentencing, I tend not to be too troubled by victim videos (especially if they are kept relatively brief). I certainly can see potential problems with excessive reliance on victim videos, but I would general trust trial judges to be able to limit effectively the use of videos that are more likely to be prejudicial than probative.
When the pardon power meets the Second Amendment
I helpful reader pointed me to this great Wall Street Journal article comblining two of my favorite legal topics these days: the clemency power and gun rights. The article is headlined "Seeking a Presidential Pardon? Try Praising the Right to Bear Arms -- Five Forgiven by Bush Share a Trait: They Really Missed Their Weapons," and here are excrpts:
On the surface, the list of the 14 people pardoned by the president this week shows few common denominators in terms of time served, geographic location or even type of crime, except that the felonies were non-violent. But a closer look at some of the newly pardoned shows many of them are church-going, blue-collar workers from rural areas (and ardent Bush supporters) who had little trouble finding jobs after their convictions. There is another common thread: the important role firearms once played in their lives.
President Bush has pardoned fewer people -- 171 -- than any president since World War II, with the exception of his father, who pardoned 74. Presidents don't discuss their reasons for issuing pardons, with few exceptions. Nor do they tell petitioners why their wish was granted. The Justice Department's "pardon attorney," who reviews hundreds of petitions a year and recommends candidates to the president, had no comment.
Coincidentally or not, at least seven of the 14 pardoned on Monday are former hunters or shooting enthusiasts. In interviews, five of them said they wrote in their petitions to the government that a desire to win back the right to bear arms was a chief reason for wanting a pardon....
Convicted felons lose a host of civil rights, including the right to vote, seek political office or bear arms. A presidential pardon forgives federal crimes and restores basic rights.
Many felons can win back some rights from their states after they complete their punishment. But the right to possess guns can be restored only by the president, says Margaret Love, a former pardon attorney under the first President Bush and the first term of President Clinton, who pardoned 396, mostly during his second term.
As regular readers know, I consider federal laws making it a serious crime for a non-violent felon to ever posses a gun to be constitutionally suspect in the wake of the Supreme Court's Heller ruling. Though I am still waiting (impatiently) for lower courts to acknowledge the Second Amendment questions that now surround these broad federal firearm restrictions on gun possession, I am glad to see that President Bush seems willing to use his clemency power to attend to these matters.
Some recent related posts:
- Justice Scalia sells out felon gun rights, but on what basis exactly?
- District Court rejects Second Amendment claim from misdemeanant
- Another (too?) brief opinion rejecting misdemeanant's Second Amendment claim
- "Begging Bush's Pardon"
- "What pardons will Bush issue?"
- Lots more talk about Presidential pardons