February 23, 2008
Sentencing delayed is sentencing reduced (with victim's help)
It is often said that justice delayed is justice denied, but this remarkable sentencing story from today's New York Times, headlined "4 Decades After Shooting, Effort to Make Punishment Fit the Crime," puts a different spin on that aphorism. Here are snippets:
What punishment should be imposed on a man who shot a police officer almost 40 years ago and fled to Canada, but went on to live an upstanding life as a husband and father who worked in a library?
There was a rare answer here on Friday: Require him to give $250,000 to a foundation that helps the families of injured Chicago police officers.
Joseph Pannell, 58, who admits that he shot a police officer here in 1969, will serve just 30 days in jail and two years’ probation as part of a plea bargain that legal experts called extremely unusual.
The driving force behind the arrangement, both sides said, was the former Chicago police officer himself, Terrence Knox, whose right arm was permanently damaged by the shooting. “Something good had to come out of this,” Mr. Knox said Friday, after watching Mr. Pannell accept the deal during a hearing in a Cook County courthouse. “The easy way out would have been to have a trial, and cost this county hundreds of thousands of dollars, have him go to jail, and cost the prison system hundreds of thousands of dollars,” Mr. Knox said.
Mr. Pannell, who was charged with aggravated battery, attempted murder and bail-jumping, could have faced up to 23 years in prison. All but an aggravated battery charge were dropped....
Mr. Pannell’s lawyer declined to answer specific questions about the shooting. But previously, John Norris, a lawyer for Mr. Pannell in Canada, said he had acted in self-defense during a time of intense distrust between the Chicago police and African-Americans. The Chicago police have said Mr. Pannell was a member of the Black Panther Party, though Mr. Pannell denies that....
Defendants in violent cases are rarely offered plea bargains that include large donations to charity instead of lengthy prison time, legal experts said. “It almost looks like a bribe,” said Ronald Allen, a professor of law at Northwestern University, who added that since the arrangement had the victim’s blessing, it might not be unreasonable. “In a way, it’s recompense for exactly the kind of harm that he caused.”
Among other great lessons, this case provides yet another example of how robust attentiveness to the interests and desires of victims can often be a progressive and healthy aspect of a sound sentencing system.
Technology, smart guns, GPS tracking and a better Second Amendment
I just noticed on SSRN this effective short article about the modern Second Amendment debated headlined "Public Safety and the Right to Bear Arms." I found the final paragraph of the piece especially insightful:
[A better Second Amendment debate would not focus on whether the Amendment protects an individual right, but rather] would involve examining how best to recognize and protect the right while also allowing legislatures leeway to develop criminologically sound measures designed to limit, in so far as possible, access to weapons on the part of career criminals and those who are mentally unstable. Such a debate would involve recognizing that the right to have arms has been and remains part of the American Constitutional tradition, that it is valued by large segments of society and that the right sets real limits on governmental regulation. It also involves recognizing that measures designed to keep weapons out of undesirable hands are not necessarily inconsistent with this right. In the second half of the twentieth century, we were unable to develop this kind of debate on the national level precisely because of the effort to redefine the Second Amendment into meaninglessness, perhaps in the first half of the twenty-first century a greater willingness to recognize the Second Amendment will allow the dialogue to begin.
I am eager to begin this dialogue, in part because technological advances are a potential "magic bullet" solution here. (Sorry for the bad pun.) Society is moving swiftly toward using technology like GPS tracking to deal with the risks associated with sex offenders, and I am troubled that we are not also moving swiftly toward using technology to deal with the risks associated with the misuse of guns.
Interestingly, though apparently there was a lot of "smart gun" talk and research going on years ago, I have had a very hard time finding any up-to-date materials on modern smart gun technology research. For example, the NRA has this fact sheet and this article by David Kopel assailing smart gun technologies, but the NRA fact sheet was last updated in January 2000, and the Kopel piece is from January 2003. Disappointingly, this page from the Brady Center to Prevent Gun Violence has over a dozen research reports, but none appear to discuss concepts of a "smart gun" or other technology-driven research seeking to reduce gun violence.
Meanwhile, I found this interesting piece in Science Daily providing a positive view of smart gun technology, but it was written in 2005. Of course, 2005 does not seem that long ago, but it certainly is in the fast-moving world of technology. (Consider again the swift pace of GPS technology advances: in 2005, a car-friendly GPS device cost thousands of dollars, now such devices are available for under $100 and are becoming a standard feature in many vehicles.)
Notably, I discovered that, in June 2001, the Bush Administration put out this very interesting document an "NIJ 'Smart Gun' Solicitation," which included this assertion: "NIJ is interested in bringing 'smart gun' technology to the law enforcement community as rapidly as possible, but in a manner that develops confidence in the technology through a clearly defined development, evaluation and demonstration process." So, apparently seven years ago there was a serious commitment by the Bush administration to bring "smart gun technology to the law enforcement community as rapidly as possible." Does anyone know how that's coming along these days?
In my view, techonology could and should provide a much more refined and effective way to regulate an individual right to bear arms than, say, completely prohibiting all felons from having guns. An effective smart gun technology could and should be able to keep guns out of the hands of those who are unlikely to be able use guns safely — e.g., kids, illegal purchasers, those with a history of violence or mental illness, abusive spouses under an active restraining order — while ensuring that police officers and lawful gun owners have little reason to worry about their own gun rights and usage.
Some related recent Second Amendment posts:
Another story about the local implementation of the new crack guidelines
Today the local details of crack retroactivity come from this piece in the St. Louis Post-Dispatch, headlined "Crack cocaine inmates may gain early release." Here are snippets:
Convicted crack dealer John J. Betts got a break in his federal prison sentence Friday — one of seven men and women who had their sentences reduced in federal court in St. Louis under new guidelines aimed at reducing the punishment faced by crack cocaine defendants.... Betts' sentence was cut by 21 months Friday, but he will actually be freed only a month earlier than scheduled, as his release date had already been moved up for good behavior.
Friday's hearings in front of U.S. District Judge E. Richard Webber were the first in eastern Missouri, but judges also can handle the resentencings without a formal court hearing. U.S. District Judge Catherine Perry resentenced three defendants on Wednesday, and U.S. District Judge Carol Jackson is believed to have been the first in Missouri or Illinois to order a resentencing when she signed paperwork last month. She was second only to federal judges in Oregon, said Doug Burris, chief federal probation officer in St. Louis, and acted because it meant immediate freedom from a halfway house for that inmate. All inmates resentenced so far have been in halfway houses, and were put at the front of the line because a recalculation of their sentence could mean freedom and no one wants them to have to serve an extra day, Burris said....
The real effect on Betts, like many of the others, will be somewhat more modest, thanks to credit they earned while in prison for good behavior or attending treatment programs. The most anyone on Friday received was a year off, but officials said that others could get up to two years off their sentence.
February 23, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack
February 22, 2008
Brit bankers get American plea bargained justice in Enron-related sentencing
This new post at the WSJ Law Blog, titled "NatWest Three Get 37 Months Each," covers this interesting Friday afternoon sentencing story:
The curtains are closing on the corporate-law drama of the ages. And three of its final players, we discovered this afternoon, are poised to exit the stage. The NatWest three — the trio of British bankers who were extradited to the U.S. in mid-2006... — received their sentencing today. David Bermingham, Giles Darby and Gary Mulgrew will each serve 37 months. Here’s the early AP report, and a report from the Houston Chronicle.
The Three — who were charged with colluding with ex-Enron CFO Andy Fastow and his lieutenant Michael Kopper to steal money from their former employer, Greenwich NatWest, now part of RBS — changed their plea from not-guilty to guilty back in November. After claiming initially that they did not collude with Fastow, the Three signed a plea agreement, each pleading guilty to one count of wire fraud.
According to reports, their sentences matched the recommendation of prosecutors, although federal sentencing guidelines recommended 41 months to 51 months. They will also repay the $7.3 million they gained from the scheme.
At the Three’s request, Werlein is recommending they do their time at Allenwood, a federal prison complex in White Deer, Pa. They’ll reportedely serve six months to a year in U.S. prison before being transferred back to a British prison. (Fastow is serving a six-year term at Oakdale, in Louisiana, while Kopper is serving 37 months at Texarkana, in Northeast Texas.)
Obviously, the lawyers for the NatWest Three effectively schooled them on the reality that they are much better of cutting a deal that risking a trial to assert their claims of innocence. Notable, the combinded plea-bargained sentences to be served by the NatWest Three and Enron's Fastow and Kopper together still add up to six years less in jail than Jeff Skilling got after his trial conviction. As I have often said before, the extremely high trial penalty in the federal criminal justice system means that someone who is really guilty (like Fastow) knows that can and should quickly cut a deal so to be much better off than anyone else who might lose at trial after maintaining their innocence (unless they can get a commutation like Libby).
Split Third Circuit ruling on guideline calculation errors after Booker
The Third Circuit today issued a long split-panel opinion in US v. Langford, No. 06-2774 (3d Cir. Feb. 22, 2008) (available here), which provides yet another remind of how many tough issues Booker created for appellate courts trying to make sense of reasonableness review. Here is the basic holding in Langford as stated at the start of the majority's opinion:
Langford argues that the District Court improperly calculated his criminal history score and consequently chose an erroneous Sentencing Guidelines range as the first step in the sentencing process, and that he should therefore be resentenced. The government urges that the error is harmless because the applicable Guidelines range overlaps with the correct range. The application of the harmless error standard to a sentence in this fact setting is an issue of first impression in our Court. We will join our sister courts of appeals who have decided this issue and hold that the error is not harmless. We will accordingly vacate Langford’s sentence and remand to the District Court for resentencing.
Here is the different perspective brought to bear by Judge Weis in the heart of hisdissent:
Rita, Gall, and Kimbrough show that appellate review hinges on the reasonableness of the ultimate sentence as based on the total § 3553(a) analysis, rather than on the calculation of the Guidelines range. The reasonableness of a sentence will not be vitiated by an “insignificant” error in the Guidelines calculation. The Guidelines computation should be performed carefully, but it is designed to produce a range –- not a designated point. Consequently, the Guidelines calculation need not be as precise as an engineering drawing.
There is enough play in the system to allow for harmless error. Although a sentence may be unreasonable if a district court makes clearly erroneous factual findings when determining the Guidelines range, the doctrines of plain error or harmless error can apply to preserve the sentence imposed.... If the computations, even if erroneous, lead the district judge to consider a reasonable range of sentences that is not a marked deviation from the national estimate provided by the correct Guidelines range, they have fulfilled their proper role....
The potential downsides of sex offender residency restrictions
The Los Angeles Times today has this notable article on sex offender residency restrictions, headlined "Jessica's Law may increase crime risks: State officials say danger of sex offenders may rise as legal provisions lead to more homelessness." Here are snippets:
The law voters passed to crack down on sex offenders could actually be increasing the danger such offenders pose by driving them into homelessness at a significant rate, members of a state board said Thursday.
In the 15 months since voters approved Jessica's Law, which restricts where paroled offenders may live and requires electronic monitoring of their whereabouts, the state has recorded a 44% increase in those registered as transients, according to a report released by California's Sex Offender Management Board. The law prohibits ex-offenders from living within 2,000 feet of places where children gather, but it lacks adequate definitions of such places, the report says. And in some counties and cities, the law's residency restrictions make large swaths of housing off-limits....
There are 67,710 registered sex offenders in California communities, the report says. The state Department of Corrections and Rehabilitation has identified 4,345 offenders on parole that it says are subject to the law, but members of the state panel said it is unclear who else may be because the law is vague. The number of transient sex offenders who could be homeless or moving from house to house increased from 2,000 more than a year ago to 2,879 today....
The report pointed out that what enforcement there is generates millions of dollars in costs to the cash-strapped state. California's corrections agency is spending an estimated $20 million a year to monitor more than 3,000 paroled sex offenders by global positioning system satellite technology. That is a fraction of those who would eventually have to be watched.
Some related posts:
The need for more litigating (and teaching) of prisoners' rights
As hinted in this post discussing parts of the terrific U Penn Eighth Amendment symposium last week, I came away from the conference thinking that a lot more lawyer (and law school) time and energy should be devoted to dealing with modern prisoner rights' issues in our massive modern criminal justice system. Responding to my request, Prof. Margo Schlanger, who's the Director of the Civil Rights Litigation Clearinghouse at Washington University in St. Louis, sent me this prisoner litigation primer for posting here:
The best available written introduction to the law in this area is the Jailhouse Lawyer's Manual, published and updated periodically by the Columbia Human Rights Law Review, most recently in 2007, and available here: http://www.columbia.edu/cu/hrlr/jlm.html
There are some excellent places to get information about cases: http://prisonlegalnews.org is one (and has a monthly newsletter) http://clearinghouse.wustl.edu is another -- but it's for specific cases or issues, not a current awareness kind of service.
There's a major two-day conference coming up with training and networking for lawyers doing this work; http://prisonlitigation.org. It's in DC, on March 28-29.
And finally, there's a great deal of information, and also a really active and useful listserv at http://probono.net, (follow the link for prisoners' rights). It's password protected, and membership controlled.
More coverage of crack retroactivity realities
The Friday papers bring these two notable stories about the new retroactive crack guidelines. From the Washingont Post here, "Crack Offenders Set for Release Mostly Nonviolent, Study Says":
Most of the more than 1,500 crack cocaine offenders who are immediately eligible to petition courts to be released from federal prisons under new guidelines issued by the U.S. Sentencing Commission are small-time dealers or addicts who are not career criminals and whose charges did not involve violence or firearms, according to a new analysis by the commission staff....
The figures are at odds with the characterization of the inmates by Attorney General Michael B. Mukasey, who would like Congress to pass legislation voiding the U.S. Sentencing Commission policy before it takes effect March 3.
From the Fresno Bee here, "Fresnan's cocaine sentence reduced: She'll be among first to benefit from new guidelines on crack":
Just two days short of her 23rd birthday, a sobbing Stacey Rena Candler was sentenced to 15 years in federal prison after what was then the largest crack cocaine bust in Fresno County history. Now, more than 11 years later, Candler is scheduled to walk free, thanks to changes in federal sentencing guidelines that bring crack cocaine prison terms -- even ones already handed out -- more in line with those for powder cocaine.
This week, U.S. District Judge Anthony Ishii signed an order that reduced Candler's concurrent sentences -- for possession of and conspiracy to possess crack cocaine for distribution -- to the time she's already served. Prosecutors agreed to the early release. Candler is the first person sentenced on crack cocaine charges in Fresno's federal courthouse to have her sentence retroactively reduced, but she won't be the last.
I do not believe that the US Sentencing Commission has made the staff analysis referenced in the Washington Post article available to the public on its website, but I am hoping it will do so soon.
Some related posts:
February 22, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (6) | TrackBack
Interesting coverage of mental illness and sentencing in Harvard Law Review
I had the honor of writing for "Developments in the Law" and then serving as Developments Chair during my years on the Harvard Law Review. Consequently, I am especially proud to see that this year's Developments in the Law is focused on "The Law of Mental Illness". And, as the introduction highlights, "[b]ecause the criminal justice system has become home to many mentally ill individuals, several of the Parts the focus on this area." Indeed, as this summary table of contents highlights, there is a lot of good reading in this Devo for sentencing fans:
DEVELOPMENTS IN THE LAW -- THE LAW OF MENTAL ILLNESS
II. Sell v. United States: Forcibly Medicating the Mentally Ill To Stand Trial
III. Booker, the Federal Sentencing Guidelines, and Violent Mentally Ill Offenders
IV. The Impact of the Prison Litigation Reform Act on Correctional Mental Health Litigation
V. The Supreme Court's Pursuit of Procedural Maxima over Substantive Minima in Mental Capacity Determinations
VI. Mental Health Courts and the Trend Toward a Rehabilitative Justice System
VII. Voting Rights and the Mentally Incapacitated
February 21, 2008
First Circuit weighs in on Rule 32(h) issue soon to be addressed by SCOTUS
As noted just earlier today, the Supreme Court will soon hear argument in Irizarry (basics here and here), a case which will force the Justice to explore "departures" and "variances" in the context of Rule 32(h)'s application after Booker. Perhaps just to give us all some exciting pre-game reading, the First Circuit today issued an en banc opinion on this issue in US v. Vega-Santiago, No. 06-1558 (1st Cir. Feb. 21, 2008) (available here). Here is a opening paragraph from the majority opinion:
The question before us is whether a district court, before sua sponte imposing a sentence outside the recommended guideline range, must automatically provide advance notice to the parties of its intent to do so and its contemplated reasoning. The circuit courts being divided,1 the Supreme Court is now likely to decide the issue, United States v. Irizarry, 458 F.3d 1208, 1212 (11th Cir. 2006), cert. granted, 2008 U.S. LEXIS 409 (Jan. 4, 2008) (No. 06-7517), but until it does, district judges in this circuit are entitled to guidance on an issue potentially present in every sentencing. Our answer is that notice is sometimes, but not always, required.
Not only are there two lengthy dissents, but these paragraphs from Judge Torruella's dissent suggests that not all is well in the land of the First Circuit:
Although I am in substantial agreement with the views expressed by Judge Lipez in his excellent dissent, I am also deeply concerned by the serious policy, procedural, and substantive issues raised by the unwarranted haste which has characterized this en banc proceeding. Accordingly, I must state my views, even if in a preliminary and incomplete fashion.
The convocation of this particular en banc proceeding highlights the whimsical and uneven manner in which this circuit often applies the rehearing rules. Indeed, both the granting and denying of petitions for these extraordinary proceedings evince a double-standard with respect to which issues are deemed meritorious of such review. See, e.g., Cerqueira v. American Airlines, No. 07- 1824 (1st Cir. XXXX) (Torruella, J. dissenting). Time constraints do not allow for an exhaustive inventory of this asseveration, but the circumstances of this present appeal demonstrate one such example.
Interesting crack retroactivity letters sent around to judges
Though all the details will surely get lost in the broader politics of the day, the little stories surrounding crack retroactivity continue to fascinate me. And, thanks to a friend of the blog, I can post here two interesting new documents sent around to federal judges this week concerning the implementation of crack retroactivity.
The first document is a letter with an order form from the Sentencing Commission and Criminal Law Committee intended to help courts implement crack retroactivity rulings. The second document forwards a letter from the Bureau of Prisons, which "request the courts' cooperation when resentencing crack cocaine offenders." This most notable part of the BOP letter is the request that judges "consider imposing a ten-day delay in the effective date of any resentence that results in the inmate's immediate release (e.g., 'time served')" in order to "allow the BOP to satisfy certain statutory requirements and work with the probation officer who will supervise the offender in the community."
February 21, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack
Breaking news: prosecutors and defense attorneys disagree on the death penalty
Though the title of this post is snarky, this new article in the Los Angeles Times — headlined "Lawyers divided on death penalty system: Prosecutors and defense attorneys tell a state panel that the system is dysfunctional but differ on solutions" — is still worthy of a close read. Of particular interest, as detailed in these excerpts, is the on-going challenge of gathering effective data on capital case administration:
During a hearing in Los Angeles before a state reform commission, prosecutors called for quicker appeals and amending the state Constitution to permit the California state Supreme Court to transfer some of the initial review of cases to state appeals courts.
Defense attorneys opposed the proposal, saying it would make the process more cumbersome. Instead, they asked that the state pare the list of crimes that qualify for the death penalty and provide more funding for lawyers who represent accused killers....
California has the nation's largest death row, with 669 condemned inmates, but has held only 13 executions since reinstating the death penalty in 1978. It takes as long as 24 years for some killers to complete their appeals before execution.
Before the hearing, two professors from Pepperdine Law School attempted to survey district attorneys around the state to learn how they decide when to seek the death penalty. But they met with little cooperation. On Wednesday, San Bernardino County Dist. Atty. Michael Ramos defended his resistance to the study.
"If you ask us to give detailed public information on each case, you will create a chilling effect" on how those decisions are made and it might lead to increased pressure on prosecutors from victims groups and police officers to seek the death penalty more often, Ramos said. He also said that his office was very restrained in seeking death sentences and that he has "lost sleep" over what he called the "ultimate decision" a prosecutor can make: "taking someone's life." "We had 142 murders in the county in 2007" but sought the death penalty in only one of them after top staff in the office reviewed the cases.
In other words, apparently law professors and others apparently just cannot handle the truth about prosecutorial decision-making in capital cases.
Exploring the relationship between departures and variances after Booker
Later this Term, the Supreme Court will hear argument in Irizarry (basics here and here), a case which may force the Justice to directly explore the status and relationship of "traditional departures" and "Booker variances" in an advisory guideline system. Because I think these issues are very important (and yet still very under-theorized even as the Irizarry case is coming before SCOTUS), I am pleased to be able to spotlight a new version of an important note authored by a former student titled "The Benefits of Departure Obsolescence: Achieving the Purposes of Sentencing in the Post-Booker World." Here is the abstract from SSRN:
Since the Supreme Court decided United States v. Booker, much scholarly debate has focused on what weight the Sentencing Guidelines should be given. But this focus does not advance what should be the central issue in all sentencing decisions: whether the purposes of sentencing are being fulfilled by the sentence imposed. This Note advocates that the Booker opinion not only created a system of advisory Guidelines, but also was an attempt to refocus the sentencing inquiry on 18 U.S.C. Section 3553(a). Nowhere is this more relevant than in the case of a defendant seeking a reduced sentence. Prior to Booker, this was limited to narrowly defined departures from the applicable Guideline Sentencing Range. But because pre-Booker departure decisions were largely devoid of Section 3553(a) analysis, many departures were purposeless. Therefore, pre-Booker departure precedent should largely be discarded. Thus far, only the Seventh Circuit (and the Ninth Circuit to a lesser degree) has declared departures obsolete. That said, one very positive development post-Booker has been the increasing usage of the vastly superior "variance" as opposed to traditional departures. The Supreme Court has recently given its blessing to the increased judicial discretion post-Booker, perhaps best typified by the variance concept. This Note explores why departure "obsolescence" should be explicitly recognized in the wake of these post-Booker developments.
How crack retroactivity is being applied in Massachusetts
This morning's Boston Globe has this new story, headlined "US shift may free up to 30 inmates: Judges here trim prison time for crack convictions," which reports on how the new crack guidelines are being applied in Massachusetts federal courts. Herw are snippets:
Federal judges in Massachusetts have begun ordering the release of prisoners convicted of crack cocaine offenses, responding to a government decision to retroactively reduce the harsh penalties for using and selling that particular form of the drug. Up to 30 could be affected.
Since Feb. 6, judges have reduced by 15 to 33 months the sentences of at least three Massachusetts inmates imprisoned for crack offenses. As a result, two who have already exceeded the shortened sentences will be freed March 3, the first day prisoners are eligible for lightened punishments for crack-related crimes. A third is expected to be released in June.
In one case, US District Judge William G. Young criticized the US Sentencing Commission for failing to implement the new sentencing structure right away when it voted on Dec. 11 to make the lessened penalties retroactive for some 19,500 federal prisoners nationwide. "The failure of the Commission immediately to implement its solution to the 'fundamental unfairness' in the way crack cocaine offenders were treated under the previous version of the guidelines . . . virtually guarantees that some defendants . . . will spend more time in prison than they should have," Young wrote Tuesday.
Miriam Conrad — head of the federal public defender agency in Boston, which represented the three defendants whose releases have been ordered - said her office has come up with a list of at least 27 other inmates who may be eligible for sentence reductions. "I'm getting letters from prisoners on a daily basis," she said.... Christina DiIorio-Sterling — a spokeswoman for US Attorney Michael J. Sullivan, whose office agreed to all three sentence reductions — said many factors will determine how prosecutors treat such applications. "In general, there will be some offenders for whom early release may be appropriate, given the reduction in sentencing as mandated by the changes in the guidelines," she said.
The opinion by Judge Young reference in this story can be accessed at this link.
February 21, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack
Missouri high court limits application of sex offender residency restriction
Thanks to this post at Sex Crimes, I see that the Ohio Supreme Court is not alone in issuing an important ruling limiting the application of a state residency restriction. As detailed in this AP story, though "a unanimous ruling Tuesday, Missouri's high court upheld a decision in May by a circuit judge striking down a portion of Missouri's sex offender statutes that could have forced the sex offenders to move." The ruling came in R.L. v. Missouri Department of Corrections, No. SC88644 (Missouri Feb. 19, 2008) (available here), and here is the opinion's summary:
Section 566.147, as applied to R.L. and those similarly situated, violates the bar on retrospective laws set forth in article I, section 13 of the state constitution. Missouri has prohibited retrospective civil laws -- which create new obligations, impose new duties or attach new disabilities with respect to actions already past -- since it adopted its first constitution in 1820. In applying this constitutional principle, this Court has held that a law requiring registration as a sex offender for an offense that occurred prior to the registration law's effective date was an invalid retrospective law in violation of article I, section 13. Doe v. Phillips, 194 S.W.3d 833 (Mo. banc 2006). The same long-standing principles apply here, as the residency restrictions impose a new obligation on R.L. and those similarly situated by requiring them to change their place of residence based solely on offenses committed before the statute was enacted.
Some related posts:
How might a private prison exec sentence as a federal judge?
Thanks to How Appealing, I just saw this intriguing article from Mother Jones magazine, which is headlined "Meet Bush's Prison Nominee: Tennessee's next trial court judge might be a prison company executive who has less courtroom experience than most inmates." Here is a snippet:
[Federal judge nominee Gustavus Adolphus] Puryear has spent the bulk of his legal career at the Tennessee-based Corrections Corporation of America, the nation's largest private prison company. As its general counsel since 2001, Puryear has made millions of dollars working for a company that profits from the country's incarceration boom, particularly through his recent sale of more than $3 million worth of the company's stock. (His financial disclosure form shows a net worth of more than $13 million.)
His employer creates enormous conflicts for Puryear as a potential federal judge, as the CCA gets sued all the time, often in the very district where he hopes to preside as judge. Since 2000, roughly 260 cases have been filed in that court against the CCA, its officers, and subsidiaries. In addition, Puryear's current job involves overseeing the CCA's defense against inmate litigation, a prison staple that he has publicly dismissed as a nuisance, even though such litigation has led to significant verdicts and settlements against the company. For instance, in 2000, a South Carolina jury hit the CCA with a $3 million verdict for abusing juveniles. Other successful suits have alleged that the company's employees abused inmates and provided negligent medical care. Yet in a quote he no doubt now regrets, in 2004 Puryear said that, "Litigation is an outlet for inmates. It's something they can do in their spare time."
Inmate lawsuits typically account for more than 10 percent of the docket in Tennessee's Middle District, meaning that Puryear will see his share of them if he gets confirmed. During his confirmation hearing last week, Puryear told the committee that he would recuse himself from any cases involving the CCA—at least, he said, for some time after he's divested all of his stock in the company. He dismissed concerns about his conflict of interest by noting that the CCA cases make up a small part of the court's workload and that his recusals would not create problems for the other judges.
But his promises to recuse still don't get to the heart of a fundamental conflict: To the CCA, inmates are a revenue stream warehoused at the cheapest price. This not exactly the view of the criminal justice system you want from a judge if you are a defendant. A trial court judge in Tennessee's Middle District can expect to handle more than 60 criminal cases a year. Every person Puryear sends to prison is a potential money-maker for his former employer, which contracts with the federal government to manage 15 detention facilities, and also holds federal prisoners in other CCA institutions that house state and local prisoners when the need arises, according to Steve Owen, the company's director of marketing and communications. The number of inmates coming from Tennessee may be relatively small, but still, it seems fair to ask whether Puryear's conflict of interest runs so deep that he might have to recuse himself from criminal cases entirely.
UPDATE: This new AP piece, headlined "Ex-Inmate Crusades Against Judge Nominee," add more wrinkles to this very interesting story: "A private prison company executive nominated to become a federal judge has run into a determined opponent — a former inmate." The story also links to this notable website, titled "Tennesseans Against Gus Puryear."
February 20, 2008
Homeward bound, I'm glad juves are
With apologies to riffing from a great song from one of my all-time favorites, this piece from today's New York Times gives sentencing folks a reason to hum a happy tune. The article is headlined "A Home Remedy for Juvenile Offenders," and here are highlights:
[A] new alternative sentencing program, which the city started in February 2007 ... called the Juvenile Justice Initiative, sends medium-risk offenders back to their families and provides intensive therapy. The city says that in just a year, it has seen significant success for the juveniles enrolled, as well as cost savings from the reduced use of residential treatment centers....
The city said that in the year since the program began, fewer than 35 percent of the 275 youths who have been through it have been rearrested or violated probation. State studies found that more than 80 percent of male juvenile offenders who had served time in correctional facilities were rearrested within three years of their release, usually on more serious charges....
Some states and other counties in New York, including Westchester, have been experimenting for years with intensive in-home and in-community therapy for children who have significant criminal records but are not psychopathic. The basic idea is to reach and help borderline youths at a moment of crisis, and turn them away from a more serious criminal path. By treating them in the context of their families and environments rather than in isolation, officials found that recidivism was usually less than half that of residential correction programs. The city says that it hopes its program will be as successful, but that it will take many years before it can be sure.
Still, at roughly $17,000 per child, such in-home therapy programs cost a fraction of the annual expense of keeping a child in secure detention, which can be $140,000 to $200,000. In fact, the financial incentive is such that both the city and state are rapidly moving away from residential detention.
Danforth's articulation of criminal justice federalism
There is so much of interest in the Supreme Court's Danforth opinion (basics here), and I'm not sure where to begin my analysis. So, to start, I'll just highlight this great passage from the majority opinion:
This interest in uniformity, however, does not outweigh the general principle that States are independent sovereigns with plenary authority to make and enforce their own laws as long as they do not infringe on federal constitutional guarantees. The fundamental interest in federalism that allows individual States to define crimes, punishments, rules of evidence, and rules of criminal and civil procedure in a variety of different ways — so long as they do not violate the Federal Constitution — is not otherwise limited by any general, undefined federal interest in uniformity. Nonuniformity is, in fact, an unavoidable reality in a federalist system of government.
Ah, the sweet sound of criminal justice federalism (and pointed criticism of a "general, undefined federal interest in uniformity"). Discuss.
Some related posts:
Ohio Supreme Court narrows state's sex offender residency restriction
As detailed in this official press release, the "Supreme Court of Ohio held today that, because a 2003 state law barring certain sex offenders from residing within 1,000 feet of a school does not expressly provide that its provisions apply retrospectively, the statute does not apply to an offender who bought his home and committed his crime before the law took effect." Notably, as the press release goes on to explain, this fancy bit of statutory interpretation has allowed the Ohio Supreme Court to avoid some tougher issues:
Because the Court found that the residency statute does not apply retroactively, the justices did not reach or decide the issue of whether such a law, if expressly made retroactive by the legislature, would violate the Ohio Constitution’s prohibition against retroactive laws that infringe on an individual’s substantive right....
Justice Terrence O’Donnell dissented, stating that in his view the plain language of R.C. 2950.031 does clearly indicate legislative intent: 1) that the 1,000-foot residency restriction be applied to sex offenders regardless of whether their crimes were committed before or after the effective date of the statute; and 2) that covered offenders be barred both from “establishing a residence” and from “occupying residential premises” that are within 1,000 feet of a school after July 31, 2003 — regardless of whether an offender “occupied” those premises before the law was enacted.... Justice O’Donnell added that, having found clear legislative intent that the challenged statute be applied retroactively, he would go on to hold that the 1,000-foot residency restriction is remedial rather than substantive in nature, and therefore that retroactive application of the statute to require Porter to vacate his home did not violate Porter’s rights under Section 28, Article II of the Ohio Constitution.
By relying on statutory interpretation in Hyle v. Porter, No. 2008-Ohio-542 (Ohio S. Ct. Feb. 20, 2008) (available here), the Ohio Supreme Court essentially kicks this hot-potato issue over to the Ohio state legislature. It will be VERY interesting to see how the Ohio legislature responds, especially since the defendant here is asserting property rights that can often change the usual political dynamics that surround crime and punishment debates.
Some related posts:
SCOTUS embraces criminal justice federalism in Danforth
The big criminal justice opinion from SCOTUS today is in Danforth, which Lyle Denniston effectively summarizes in this post. Here are highlights of Lyle's summary:
Dividing 7-2, the Supreme Court ruled Wednesday that states, under their own laws or constitutions, may give state prisoners the retroactive benefit of Supreme Court criminal law decisions, even if the Court itself has ruled they are not retroactive under federal law. Justice John Paul Stevens wrote for the majority in Danforth v. Minnesota (06-8273). Chief Justice John G. Roberts, Jr., dissented, joined by Justice Anthony M. Kennedy.
The issue in the case is whether the so-called “Teague” formula (Teague v. Lane) for deciding when a Supreme Court ruling on criminal procedure is to apply to earlier cases was binding on the states. Justice Stevens wrote: “The question in this case is whether Teague constrains the authority of state courts to give broader effect to new rules of criminal procedure than is required by that opinion. We have never suggested that it does, and now hold that it does not.”... “A decision by this Court that a new rule does not apply retroactively under Teague,” Justice Stevens wrote, “does not imply that there was no right and thus no violation of that right at the time of trial — only that no remedy will be provided in federal habeas courts. It is fully consistent with a government of laws to recognize that the finality of a judgment may bar relief. It would be quite wrong to assume, however, that the question whether constitutional violations occurred in trials conducted before a certain date depends on how much time was required to complete the appellate process.”
Stevens added: “The states that give broader retroactive effect to this Court’s new rules of criminal procedure do not do so by misconstruing the federal Teague standard. Rather, they have developed state law to govern retroactivity in state post-conviction proceedings.” Federal law does not prohibit them from doing so, the Court said....
Chief Justice Roberts, in dissent, said the decision was “contrary to the Supreme Clause and the Framers’ decision to vest in ‘one supreme Court’ the responsibility and authority to ensure the uniformity of federal law.” Citing Marbury v. Madison (1803), the Chief Justice noted that “this Court has held that the question whether a particular ruling is retroactive is itself a question of federal law. It is basic that when it cmes to any such question of federal law, it is ‘the province and duty’ of this Court ‘to say what the law is.’….State courts are the final arbiters of their own state law; this Court is the final arbiter of federal law. State courts are therefore bound by our rulings on whether our cases construing federal law are retroactive.”
The opinions Danforth v. Minnesota (06-8273) are now available here, and I likely will have lots to say once I have a chance to take in the full opinion. For now I will just comment on the remarkable voting pattern, with only the Chief Justice writing a dissent and with supposed swing voter Justice Kennedy coming along with the dissenting views of the nation's umpire in chief.
Aren't extreme sentences and mass incarceration a "tired philosophy that trusts in government more than people"?
This phrase in John McCain's speech last night really caught my attention as a sentencing geek: in his most-quoted line, Senator McCain cautions against "the false promises and failed policies of a tired philosophy that trusts in government more than people." Though I know this is means as an attack on liberal social policies, it strikes me as an especially effective attack line against "tough-on-crime" political rhetoric that seeks to increase incarceration for any and all criminal offenses.
Consider this issue, for example, in the context of white-collar prosecutions and sentencing. After the Enron scandal, sentences for white-collar crimes went up dramatically. But this "tough-on-crime" approach did not prevent all the mortgage fraud and predatory practices that helped contribute to the current economic woes.
Of course, an even more obvious example is the seemingly endless "war on drugs." As long sentences for all sorts of non-violent drug crimes continue to be imposed, I cannot think of a more fitting setting in which we see, year-in and year-out, politicians promoting "false promises and failed policies of a tired philosophy that trusts in government more than people."
Corrupt GOP contributor gets long below-guideline sentence
As detailed in this Washington Post story, a high-profile corruption sentencing took place yesterday in which the defendant got a dozen years in prison and should feel lucky he did not get a lot more:
Brent R. Wilkes, a California defense contractor and prominent GOP campaign contributor, was sentenced to 12 years in federal prison yesterday for lavishing a Republican congressman with money, prostitutes and other bribes in exchange for nearly $90 million in work from the Pentagon. Wilkes, 53, was convicted in November of 13 felony crimes including bribery, conspiracy and fraud for giving the gifts to former representative Randy "Duke" Cunningham (R-Calif.), who is serving an eight-year prison term for accepting millions in bribes from Wilkes and others.
The sentence by U.S. District Judge Larry Burns in San Diego was far smaller than the 25-year term federal prosecutors had sought or the 60-year term urged by federal probation officers. U.S. Attorney Karen P. Hewitt said nonetheless that Wilkes "has earned every day of the sentence he received" and that the prison term "reflects the egregiousness of the corrupt conduct."
Wilkes has steadfastly maintained his innocence since being charged a year ago, saying his dealings with Cunningham were legitimate and blaming wrongdoing on others. "I am a man who cares deeply for this community, for my family, for my country," Wilkes said in a brief statement to the court, the Associated Press reported.
The judge said he was troubled by Wilkes's failure to accept responsibility for his crimes. "If you were to do the right thing about this, today is the day to own up," the judge told Wilkes, according to the AP. "You have no sense of contrition. You had this corrupt relationship with the congressman and you profited from it."
February 19, 2008
Add North Carolina to the list of states strugging with prison population problems
This AP story highlights yet another state dealing with the economic and policy challenges of an ever-expanding prison population. Here are details:
The rapid growth in North Carolina's prison population may force lawmakers to spend more tens of millions of dollars to expand the state prison system, according to recent population projections. The growth has cooled but not enough to ward off the need for new construction, said Susan Katzenelson, executive director of the state Sentencing and Policy Advisory Commission. The commission has suggested shortening some prison sentences to address the problem, but lawmakers haven't acted on the advice.
Last year, prison expansion projects cost more than $32 million. Those projects included adding 504 beds at Scotland Correctional Institution, a 1,000-bed high security facility in Laurinburg, and 252 beds at Alexander Correctional Institution, a 1,000-cell close custody prison in Taylorsville. Despite the construction, the state's prison population is expected to outstrip capacity this year. Projections show a 6,000-bed shortfall by 2017....
Sen. Ellie Kinnaird, co-chairwoman of a committee that helps set the Department of Correction budget, said her colleagues must consider alternatives. The Sentencing and Policy Advisory Commission has suggested subtle changes be made to sentencing laws to shorten some prison sentences that Kinnaird, a Carrboro Democrat, said could reduce the prison population by up to 1,000 inmates.
Lawmakers have been unwilling to consider the recommendations. Committee member Rep. Carolyn Justus, a Hendersonville Republican, doesn't like the idea of shortening prison terms, though she said she may consider looking at sentencing alternatives for nonviolent criminals.
Recent coverage of other states' struggles with the various costs of large prison populations:
- see also this post, "Costs cause states to pursue prison alternatives"
When might the USSC have some post-Gall/Kimbrough data to share?
It has now been more than two full months since the Supreme Court decisions in Gall and Kimbrough, and I am really wondering if these rulings have had a significant impact on district court sentencing outcomes. From various conversations and news reports (and early judicial scholarship), Gall and Kimbrough have been viewed as dramatically important statements of the scope of post-Booker discretion that district judges now possess. But the proof is in the data, and the US Sentencing Commission has not released any post-Gall/Kimbrough data (even though probably more than 10,000 sentences have now been imposed since Gall and Kimbrough came down).
I do not fault the USSC on this data front; the Commission has surely been busy dealing with crack retroactivity issues and other matters. But, as regular readers know, I sure like my sentencing data, and I am starting to get an itch for up-to-date data concerning the latest sentencing work from the federal district courts.
A must-read for all would-be sentencing reformers
Though the paper does not mention sentencing once, this new work soon to be published in the Cornell Law Review is a must-read for any and all would-be sentencing reformers. The piece is titled, "Blinking on the Bench: How Judges Decide Cases," and here are excerpts:
In this Article, we argue and attempt to demonstrate that neither the formalists nor the realists accurately describe the way judges make decisions, but that key insights from each form the core of a more accurate model. We propose a blend of the two that we call the "intuitive-override" model of judging. Supported by contemporary psychological research on the human mind and by our own empirical evidence, this model posits that judges generally make intuitive decisions but sometimes override their intuition with deliberation. Less idealistic than the formalist model and less cynical than the realist model, our model is best described as "realistic formalism." The model is "realist" in the sense that it recognizes the important role of the judicial hunch and "formalist" in the sense that it recognizes the importance of deliberation in constraining the inevitable, but often undesirable, influence of intuition....
As we demonstrate below, judges are predominantly intuitive decision makers, and intuitive judgments are often flawed. To be sure, intuition can lead to accurate decisions, as Malcolm Gladwell documents in his bestseller, Blink, while deliberation can lead to error, as any court observer knows. But intuition is generally more likely than deliberation to lead judges astray. We suspect this happens with some frequency, but even if it is uncommon, millions of litigants each year might be adversely affected by judicial overreliance on intuition. Therefore, the justice system should take steps to limit the impact of what we call "blinking on the bench."
Eliminating all intuition from judicial decision making is both impossible and undesirable because it is an essential part of how the human brain functions. Intuition is dangerous not because people rely on it but because they rely on it when it is inappropriate to do so. We propose that, where feasible, judges should use deliberation to check their intuition.
I suspect that anyone who has ever done any serious sentencing work can identify fully with the concept of an "intuitive-override" model of judging and also can report instances in which their clients (whether a defendant or the government) were "adversely affected by judicial overreliance on intuition." What's especially interesting is that this article's proposed "solution" to "blinking on the bench" sounds a lot like the post-Booker sentencing model that has emerged after the Supreme Court's follow-up decisions in Rita and Gall and Kimbrough.
Shouldn't we have tougher recidivism sentencing laws for DWI?
This Ohio story about an upcoming DUI sentencing has my blood boiling again about the failure of states to adopt tough recidivism sentencing laws to respond to the very risky behavior of repeat drunk driving. Here are the basics:
Three decades of drunken driving have finally caught up with 19-time offender Stephen W. Wolf — thanks largely to a pair of quick-acting young men. Wolf, 50, of Hamilton, faces up to 10 years in prison when he is sentenced today on his 19th drunken-driving conviction....
Wolf's lawyer, Robert Qucsai, says Wolf should not be judged by his driving record alone. "He's a really personable guy. He's really easy to talk to. He's not nearly as bad as his record would reflect," Qucsai said Monday. Even Qucsai acknowledges that people ask him: How could Wolf still be driving? Qucsai's answer: "It's not like he has a valid license."
Plenty of people drive despite having a suspended or revoked license, authorities say, and locking them up is the only way to stop them from driving.... Authorities say Wolf likely would not even be in court if not for Alex Heher, 20, of Fairfield Township, and his passenger, Adam Trantham, 19. They followed Wolf after seeing him in a hit-and-run crash July 13....
Assistant Prosecutor John Heinkel... said it would be an over-reaction to blame the court system for Wolf's lengthy record without long-term punishment. "My guess would be that, in some of the prior cases, there were probably issues as to the (alcohol) testing, and negotiated pleas were worked out," he said....
Back in the 1970s — when Wolf first started drinking and driving — all drunken-driving charges were misdemeanors. Those charges carried little or no jail time, no matter how many times a drunken driver was snared, Heinkel said. Now, repeat drunken drivers are slapped with felonies — and a 2004 Ohio law adds one to five years for offenders with at least five drunken-driving convictions during a 20-year span.
The article rightly notes that, over the past three decades, drunk driving sanctions have become more severe. And to good effect: as this 2002 report details, considerable research "over 40 years has shown conclusively that good laws that are strongly supported and enforced with meaningful penalties reduce drunk driving." Unfortunately, as this report also details:
Every state has an elaborate system of drunk driving laws, enforcement, courts, and punishment, but these systems do not work as well as they should. Arrest rates are low. Complex laws allow some offenders to escape any punishment. Other offenders can avoid a drunk driving conviction through a plea bargain. Sanctions are not applied consistently. Sentence requirements are not completed. These problems are not well known because many states do not have good record systems. Drunk drivers have little fear of being stopped, arrested, convicted, and punished — so they continue to drink and drive.
In California, a petty theft following two drug offenses can be enough to get someone a mandatory sentence 25-year-to-life, but even Ohio's "tougher" DWI law only adds a few years for having at least five drunken-driving convictions. I guess we as a society are not really as concerned about the loss of life as some death penalty abolitionist folks might have one believe.
Questioning law school priorities in instruction and programming
As Dan Filler notes in this post at The Faculty Lounge, at the terrific U Penn Eighth Amendment symposium last week I complained about the over-emphasis on capital punishment instruction and related programming in law schools. Here is how Dan nicely summarizes my comments:
He argues (his stats, not mine) that about 150 law schools offer courses on the death penalty, while only about 30 offer general sentencing classes. And Sharon Dolovich and Margo Schlanger piped up that there are no more than 5 lecture-style courses on the constitutional law of incarceration and corrections. Doug contends that this reflects the preferences of law faculty — who find the death penalty a glossy and compelling issue — and also serves to reproduce this view of the world on the part of students. He argues that those seeking real change in criminal justice policy should refocus students on the big picture issues like mass incarceration, oversentencing, prison conditions, and the like.
I am drawn back to these comments today upon tripping across this law school website that indicates that nearly 100 law schools have a course on animal law. The website explains: "Nearly half of US law schools teach an overview course and a growing number of schools now offer clinical opportunities. Lewis & Clark Law School has the most developed animal law program offering six courses, including summer courses, moot court, and the Animal Law Clinic." To my knowledge, though there are death penalty clinics at many law schools (including in states that do not have the death penalty), I am not aware of any established sentencing clinics or prisoner rights' moot courts.
I suppose it is a sad and telling commentary that many law schools have devoted more resources toward having students question the legal treatment of animals than the legal treatment of criminal offenders. Perhaps advocates for sentencing and corrections reform need to find some incarcerated people with sad puppy-dog eyes so that humans locked in cages will evoke as much sympathy in elite law schools as animals locked in cages. Then again, if the human has committed a brutal murder and been sentenced to death row, the offender is then likely to get lots of attention no matter what his eyes look like.
Sixth Circuit back in action with three sentencing rulings
Coming back strong after a long weekend, the Sixth Circuit today has handed down three opinions that all have significant sentencing discussions. A very quick read of these three opinions suggests that none breaks significant new ground, but all three are worthy of attention for their continued elaboration of post-Booker and post-Gall appellate review realities:
- US v. Smith, No. 06-1218 (6th Cir. Feb. 19, 2008) (available here) (affirming above-guideline sentence in fraud case)
- US v. Phillips, No. 06-6191 (6th Cir. Feb. 19, 2008) (available here) (affirming within-guideline sentence in gun case)
- US v. Wheaton, No. 06-4080 (6th Cir. Feb. 19, 2008) (available here) (affirming within-guideline sentence in drug case)
One federal district trying a single judge approach to crack retroactivity
This new article in the Kansas City Star, headlined "Sentence corrections possible in crack cocaine cases," reveals that one federal district has adopted an interesting (and legally questionable?) approach to crack retroactivity matters:
Late last month, Chief U.S. District Judge Fernando Gaitan issued an order establishing the sentence-reduction procedure for western Missouri. Requests will be funneled to U.S. District Judge Ortrie Smith, who will make the final decisions after receiving input from a public defender, two prosecutors and several U.S. probation officers....
The [US Sentencing] Commission estimated last year that about 3,800 inmates nationwide could be released within a year after the decision takes effect March 3. In western Missouri, about 60 inmates could be released in the first few years.
The sentence reductions are not automatic. A variety of factors, including public safety considerations, will play a role in whether an inmate qualifies, said Kevin Lyon, the chief probation officer in Kansas. Lyon said his office will notify Smith of any public safety questions that arose either at the offender’s initial arrest or since incarceration. Gregg Coonrod, an assistant U.S. attorney who is handling claims for the government, said his office also would watch for inmates who could present a problem on their release. “We’ll argue over the ones who are worth arguing over,” Coonrod said.
February 19, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (1) | TrackBack
More on technocorrections for sex offenders
This new article in the St. Louis Post-Dispatch, headlined "Technology keeps eye on sex offenders," provides a useful overview of various technocorrection issues surrounding sex offender tracking:
Nobody wants them. But everyone wants to know where they are. So cities and states are forging new laws and using the latest technologies to keep tabs on hundreds of thousands of convicted sex offenders.
Their home addresses are considered public information. Some wear bracelets that can be tracked by satellite and cell phone towers. Others are forced to give their online identities and screen names to parole officers. Some communities are limiting where offenders can live.
The ability to track them, safety advocates say, is one of the best ways to protect the public. If you know where the bad people are, they say, it's easier to keep an eye on them. Or to avoid them altogether. Critics, however, say new laws and restrictions make it impossible for sex offenders to be anything more than social outcasts. And there are those who worry about putting so much emphasis on what they characterize as a small piece of the sexual crime problem....
What's changing is the ease of access and the options available. More than 600,000 registered sex offenders can be found in state and national databases, run both by government and private industry....
Sparked by the 2005 rape and murder of a 9-year-old Florida girl, many states are taking a more forceful approach, particularly against violent offenders or those who sexually assault children. A hallmark of Florida's Jessica Lunsford Act is mandatory lifetime GPS tracking after an offender is released from prison.
The idea has caught on, with dozens of states enacting similar laws. Such monitoring costs around $20 a month for each offender. Generally using a mixture of GPS and cellular networks, offenders can be monitored passively or actively. Their movements might be checked only if there is a question about recent travels, or they might be watched constantly by someone at a computer screen....
It's also possible to declare certain areas, or even people, off-limits through the use of virtual fences and personal monitors. Previous victims, for example, could be notified whenever their attacker is nearby, said Daniel Graff-Radford, a vice president with Omnilink Systems, a Georgia company that monitors offenders for 100 agencies in 38 states....
And in what some characterize as an extreme variation of tracking technology, an Ohio company is promoting a device — which anyone could buy — that would vibrate whenever a bracelet-wearing sex offender comes within 50 yards.
Some related posts on sex offender GPS tracking:
February 18, 2008
Three brief queries about capital appellate briefing realities
Prior posts about the Penry case and death penalty costs have me again interested in doing some arm-chair empiricism about the time, money and energy that gets devoted to litigating capital cases. Specifically, I'd like to estimate the number of appellate briefs that have been filed in three distinct death penalty settings. So, here are my queries:
1. How many appellate briefs were filed (in toto counting all parties and amici briefs filed in all direct and collateral appeals) in the Johnny Paul Penry case in Texas?
2. How many appellate briefs have ever been filed, in toto, concerning lethal injection protocols in courts nationwide?
3. How many appellate briefs have ever been filed, in toto, concerning death penalty cases in California?
I ask these related, but quite distinct, question for various reasons:
- question 1 is focused on the amount of time, money and energy devoted to appellate litigation concerning the punishment of a single defendant whose guilt was never in doubt;
- question 2 is focused on the amount of time, money and energy devoted to appellate litigation concerning how to administer the death penalty, not the merits of the punishment itself;
- question 3 is focused on the amount of time, money and energy devoted to appellate litigation in one jurisdiction which, as detailed in this article, is actively trying to figure out why its death penalty system seems so badly broken.
I would be grateful to anyone who takes a little time to do some real research to provide educated guesses for all these questions. Without doing any research, I will throw out some ballpark numbers. I would guess: 500 appellate briefs were filed in the Penry litigation; 1500 appellate briefs have been filed concerning lethal injection protocols; and 10,000 appellate briefs have been filed in capital cases in California.
I am sure these guesses are way off, but I'd love to hear other guestimates from readers in the comments.
Examining realities of crack sentencing reform
USSC Commissioner John Steer and attorney Mark Allenbaugh have this new Findlaw piece, titled "The State of Federal Cocaine Sentencing Policy: Will Congress Soon Finish What the U.S. Sentencing Commission Started?". Here is how it ends:
[T]he Justice Department is rightly concerned about public safety, and a greater emphasis on re-entry programs is welcome. Congress, therefore, should carefully monitor developments.
The Sentencing Reform Act of 1984 envisioned a very limited, well-regulated remedial process in which judges make their sentence reduction decisions within parameters set by the Sentencing Commission. In the wake of U.S. Supreme Court decisions granting greater judicial sentencing discretion, there may be a tendency for some to exceed intended boundaries in these special, limited-purpose retroactivity proceedings. If that becomes a significant problem, Congress should determine if remedial legislation is warranted.
Finally, Congress also needs to fully understand that a more complete, just resolution of the entire crack/powder excessive disparity issue is now squarely in its hands and urgently needs prompt legislative action. As Commission Chairman Judge Ricardo Hinojosa recently testified before the Senate Judiciary Committee, "[t]he Commission believes that there is no justification for the current statutory penalty scheme for powder and crack cocaine offenses," and "the Commission is of the opinion that any comprehensive solution to the problem of federal cocaine sentencing policy requires revision of the current statutory penalties and therefore must be legislated by Congress."
Wondering about death and dollars in Ohio and Texas
Some commentators are questioning my (inflated?) guess that Texas may have spent a billion dollars seeking the death penalty for Johnny Paul Penry over the past three decades. Though I am not sure my economic guess is reasonable, I am sure that it is a serious problem that nobody has seriously investigated (or even seriously asked) how much money has been devoted to trying to have Texas execute Johnny Paul Penry for his 1979 crime.
I stress this issue now because the national spotlight is turning to Ohio and Texas in the campaign for the presidency. Interestingly, these two states have had the most executions over the last three+ years: Ohio has had 18 executions from 2004 to the present; Texas has had 92 executions from 2004 to the present. This fact alone justifies a serious examination of the death penalty's benefits and costs as the national political focus turns to the states that are modern national leaders in administering the death penalty.
Of particular concern to me, as the Penry discussion highlights, is how much money Ohio and Texas have spent on the social program of capital punishment since 2004. Though I cannot speak for Texas, I know Ohio is facing very difficult economic times (as shown in this news report, noting that Governor Strickland recently announced having to "cut up to 2,700 state jobs and shutter two mental hospitals as part of belt-tightening plan to offset a projected $733 to $1.9 billion shortfall"). Disturbingly, I never hear any discussion about the significant costs of a capital punishment system or about the potential savings that a move away from the death penalty might bring in Ohio and elsewhere. (Weirdly, the ABA's massive moratorium reports covered every death penalty issue except the two most practically important: costs and execution protocols.)
As regular readers know from prior posts, I tend to favor the death penalty in theory. But I am always bothered by the lack of sober economic analysis concerning the death penalty's real costs, especially in states like Ohio and Texas that actually execute killers. I wonder if any of the candidates or their staffs or public policy groups might start talking about these issues as Ohio and Texas become the hot political battleground states over the next two weeks.
February 17, 2008
More remembering of the Clinton pardon ugliness
Thanks to this post at Pardon Power, I see another commentary today recalling the pardon scandal that Bill Clinton created his last day as president. Though this op-ed, titled "Remembering and then forgetting the Clintons," covers a range of issues, and these excerpts highlight the pardon story:
Before Bill and Hillary jetted to their new New York home following George W. Bush's inauguration, he told supporters and former administration officials at a crowded Andrews Air Force Base hangar, "We are not going anywhere!"... The thought at the time was that he who would be free of the White House's trappings and scandals and could help propel the Democrats back to power as the majority party in Congress.
But, when presented with a fresh start, Clinton made no use of it. The same clouds of scandal and controversy, which cast shadows over HIS entire presidency set in at the beginning of his post-presidency. Clinton garnered unwanted publicity for a greedy duo of mini-scandals first, by lifting several thousands of dollars of White House furniture and his pursuance of a high-priced office in a palatial New York City high-rise.
Then there was his pardon of fugitive-financier Marc Rich, who had been on the run for evading millions of dollars in taxes and doing business with the Iranian government while it held American hostages? There was an indissoluble link between the pardon and the millions of dollars given to the Clintons by Rich's ex-wife, Denise, through campaign contributions, donations to the presidential library and even personal gifts. Despite his assurances at the time to the contrary, the pardon had all the appearances of a quid pro quo. Clinton was on his own, calling friendly reporters and opinion-makers trying to explain his pardon.
Democrats, who had defended all of Clinton's intolerable actions in office, openly castigated the former president. Daily, Democratic members of Congress made the rounds on the 24-hour cable news channels to express their disgust for Clintons' departing actions. Even The New York Times reported at the time that the Clinton/Rich scandal had a dramatic impact on the Democratic Party's fund-raising efforts. Various donors, who were being hit up at the time for campaign cash, cited the "cash for pardons" scandal as a key factor in their decision not to give.
Shortly after he left office Democrats just wanted Clinton to go away, because — they'd had enough. Just last week, Hillary all but guaranteed that her husband wouldn't be the source of scandal in her White House if she was elected president. How could she be so confident? She can't control him when he's out on the campaign trail.
Some recent related posts:
- Will the new US Pardon Attorney "scandal" garner any serious attention?
- Editorial on presidential pardon practices
After three decades (and a billion dollars wasted), Penry gets a life sentence
The AP here details remarkable final chapter to an infamous and telling Texas capital punishment story:
The state will not seek the death penalty against convicted killer Johnny Paul Penry in an agreement that will require Penry to serve three consecutive life sentences without the possibility of parole, officials said Friday. Polk County Criminal District Attorney William Lee Hon reached the agreement with attorneys for Penry, who was convicted of raping and fatally stabbing a woman at her home in Livingston in 1979....
The agreement means Penry's case will not have to go back to a jury to consider his punishment for a fourth time. In 2006, the U.S. Supreme Court, acting on an appeal from the Texas Attorney General's Office, refused to reinstate Penry's death sentence, clearing the way for a new penalty phase....
Penry has spent more than half of his life on death row for the slaying of 22-year-old Pamela Moseley Carpenter, the sister of former Washington Redskins kicker Mark Moseley. Penry confessed to attacking the woman and stabbing her with scissors.... Mark Moseley said that while Friday's agreement brought the tragedy back to the forefront and made him feel "almost like it just happened again," he was glad to get the legal situation behind him.
Penry's longtime attorney, John Wright, said he was pleased with the decision. "They've finally come around to what should be done," Wright said. "I've been asking for a life sentence since November 1979." Wright said, though, that "there aren't any winners in these cases. ... I'm not claiming a victory."
Penry's attorneys had contended their client, who has said he believes in Santa Claus, has the reasoning capacity of a 7-year-old. While psychological tests have put Penry's IQ between 50 and 60, at least five juries have found Penry to be legally competent to stand trial or have rejected defenses based on mental retardation. The high court in 2002 ruled mentally retarded people, generally considered having an IQ below 70, may not be executed....
"Why don't they just lock me up and throw away the key?" Penry told The Associated Press in 2001. "That's all I want."
The Supreme Court first agreed to hear Penry's case in 1988, and the following year overturned his death sentence on 5-4 vote. In 2000, he got within about three hours of execution when the justices halted the punishment. Penry was again sentenced to death, which was voided in 2001 by the Supreme Court on a 6-3 vote. Both times the high court reasoned the jury was not allowed to properly weigh Penry's alleged retardation. A new trial in 2002 led to a death sentence that was reversed in 2005 by the Court of Criminal Appeals, which ruled 5-4 to send Penry's death sentence back for another punishment hearing. It was that decision the attorney general's office appealed to the high court.
So, let's review: in Penry's case there was no question about guilt, only whether he would get a life sentence or the death penalty. Because Texas prosecutors for 30 years were not content with anything less than a death penalty, they put three juries through the agonizing experience of having to condemn a person to death. And, in part because prosecutors were so effective in getting many juries to return a death verdict, this case made its was to the US Supreme Court twice and was the subject of dozens of lower court rulings.
I wonder how much time, money and energy was spent by Texas and US taxpayers trying to figure out Johnny Paul Penry's fate. Given the estimate that over $2.3 million extra dollars are spent on an average capital case in Texas, I seems reasonable to guess that over $1,000,000,000 has been spent by US and Texas taxpayers to decide whether Johnny Paul Penry should be executed for his crime! And, after all this time and money was devoted to this capital case, it ends with the LWOP sentence that the defense has been urging for nearly three decades. I wonder how many underfunded local police forces or local schools or crime victim funds or roads construction crews could have been more productive than was the criminal justice system with this billion dollars wasted by Texas prosecutors trying to have the state kill Johnny Paul Penry for his admitted crime.
The particular irony in the Penry case is that prosecutors' pursuit of the death penalty lead to accomplishments, but mostly by those favoring death penalty abolition. The time and money spent on the Penry case surely diverted some Texas prosecutors from spending time and money pursuing other capital cases. Moreover, the two Supreme Court Penry decision were critical catalysts for the Court's ultimate ruling in 2002 that the Eighth Amendment demands a categorical ban on the execution of all persons who suffer from mental retardation. So, to be accurate, the billion dollars invested by Texas prosecutors in the Penry case did have some positive pay-off — but really only for those who oppose capital punishment.
Some related posts on the extraordinary economic costs of capital punishment: