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.
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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.