Sentencing Law and Policy

"Mom's plea deal includes 'resurrection clause'"

The title of this post is the title of this new piece at CNN.com.  Here are the fascinating particulars:

A Maryland woman involved with a group described as a religious cult pleaded guilty in the starvation death of her son, but insisted that the charges be dropped when he is resurrected.  The condition was made a part of Ria Ramkissoon's plea agreement, officials said.  She entered the plea Monday in Baltimore, Maryland, to a first-degree felony count of child abuse resulting in death, her attorney, Steven Silverman, said Tuesday.

Ramkissoon, a member of a group called One Mind Ministries, believes Javon Thompson, her year-old son, will rise again, and as part of her plea agreement, authorities agreed to the clause. "She certainly recognizes that her omissions caused the death of her son," Silverman said.  "To this day, she believes it was God's will and he will be resurrected and this will all take care of itself.  She realizes if she's wrong, then everyone has to take responsibility ... and if she's wrong, then she's a failure as a mother and the worst thing imaginable has happened.  I don't think that, mentally, she's ready to accept that."

Under the plea agreement, Ramkissoon, 22, must testify against four other One Mind Ministries members who are also facing charges, including first-degree murder, in Javon's death.  At her sentencing, set for August, she will receive a 20-year sentence, which will be suspended except for the time she has already served behind bars, Silverman said.  She must also undergo deprogramming and psychiatric counseling.

In court Monday, it was clarified that the "resurrection clause" would apply only in the case of Javon's actual resurrection -- not a perceived reincarnation, Silverman said. "This has never come up in the history of American law, as far as I've seen," Silverman said, adding that the clause was "very important to her."...

Ramkissoon and the others are accused of denying Javon food after the group's leader, a 40-year-old woman who goes by the name Queen Antoinette, decreed the boy was a demon since he refused to say "amen" after meals, Silverman said.  "Ria would cling to him every day and try to get him to say 'amen,' " Silverman said. Eventually, Queen Antoinette ordered that Ramkissoon be separated from the child, he said.

Javon is believed to have died in December 2006, court documents allege.  Following his death, the group members put the boy's body in a back room, and "everyone was directed to come in and pray," according to the documents.  "The Queen told everyone that 'God was going to raise Javon from the dead.'  Javon remained in the room for an extended period of time (in excess of one week). The resurrection never took place." 

Obviously, this is a serious matter and a sad case.  Nevertheless, I can already begin to imagine the late-night talk-show writers working this case into an opening monologue.  In addition, I cannot help but think about other possible unusual plea terms that this case might prompt.

Eleventh Circuit affirms below-guideline sentence in "utterly gruesome" sex offense case

Late yesterday the Eleventh Circuit handed down a notable opinion in US v. Irey, No. No. 08-10997 (11th Cir. Mar 30, 2009) (available here). The start of the panel opinion provides a sketch of the particulars:

This appeal is about the discretion of a district court to impose a particular sentence. William Irey (“Defendant”) -- age 50 at sentencing -- pleaded guilty to using minors to engage in sexually explicit conduct outside the United States for the purpose of producing visual depictions of such conduct and transporting those images to the United States.  Believing that the sentence imposed on Defendant is too lenient, the government appeals Defendant’s sentence of 210 months’ imprisonment plus a life term of supervised release involving many different restrictions on his liberties.  We affirm the sentence.

While the ruling and majority opinion is itself noteworthy, a brief "special concurrence" by Judge Hill adds an extra layer of intrigue.  Here are snippets from this concurrence:  

I have studied this record and the sentencing transcript and the utterly gruesome details of the conduct involved here. I disagree with the conclusion by the district judge that there should have been a downward departure of any kind in this case.... The defendant acted deliberately, cunningly and with obvious delight. He ruined the lives of at least forty-three children (that we know of) and then published his triumphs on the internet for all the world to see, complete with scurrilous black marker writings tattooed on the nine-year-old girls’ skin.

Had I been given the heavy responsibility of sentencing in this case, my only regret would be that in the halls of Congress, the occupants of that legislative branch place an upward limit on this defendant’s confinement.  I strongly disagree with the district judge’s sentencing in this heinous case, as he moves so far downward from the maximum upper sentencing limit that he nearly reaches the minimum limit.

I am persuaded that the sentencing in this case is not a proper one. However I am more dedicated to my strong belief that district judges “on the firing line” should have free rein to exercise sentencing discretion.  Therefore, I am unwilling to say that the fact that I disagree with the sentence in this case is also sufficient grounds upon which to find abuse.

I reluctantly concur.

Federal district judge enjoins controversial state sexting prosecution

As detailed in this Reuters article, a federal district judge "on Monday barred a Pennsylvania prosecutor from filing child pornography charges against three teenage girls caught with sexually suggestive pictures of themselves on their cell phones."  Thanks to How Appealing, you can read the judge's full opinion at this link, and here are more details from the Reuters article:

U.S. District Judge James Munley said he was issuing a restraining order on Wyoming County District Attorney George Skumanick because his proposed action would violate freedom of speech and parental rights.  The ruling came after the American Civil Liberties Union sued Skumanick on behalf of the girls and their families.  "The court agrees with the plaintiffs that the public interest would be served by issuing a TRO (temporary restraining order) in this matter as the public interest is on the side of protecting constitutional rights," the judge said....

Witold Walczack, legal director of the ACLU of Pennsylvania, welcomed the legal decision. "This country needs to have a discussion about whether prosecuting minors as child pornographers for merely being impulsive and naive is the appropriate way to address the serious consequences that can result from sexting," he said.

But Skumanick said it could encourage potential defendants to use the federal court system to evade state charges.  "My big fear is setting the precedent that would allow criminals in the state system seeking protecting in the federal system." Skumanick said.  When asked if he would appeal, he said was studying the opinion.

Based on the pretty remarkable factual allegations in this "sexting" case, I am neither surprised nor too troubled that the local DA was given a federal court smack-down in this case.  That said, I suspect that lots of state prosecutors ought to share the local DA's concern that this ruling in Miller v. Skumanick could (and should?) embolden any and all potential state criminal defendants to run to federal court to seek to preclude any and all constitutionally questionable state prosecutions. 

Indeed, I would suspect that anti-death-penalty litigators might want to take a page from the playbook of the ACLU of Pennsylvania.  Based on the theories sustained in Miller v. Skumanick, a state murder defendant being threatened by a local prosecutor with a capital indictment as part of plea negotiations might now consider running to federal court to assert various constitutional claims in order to try to preclude the local prosecutor from pursuing a state capital prosecution. 

Similarly, perhaps Second Amendment advocates can and should be able to use the ruling in Miller v. Skumanick to try to thwart any efforts by aggressive state prosecutors to pursue any kind of constitutionally questionable gun prosecution.  In fact, with Plaxico Burress having a hard time getting a favorable plea deal (basics here), his lawyers perhaps out to seriously consider heading over to the federal courts in Foley Square to assert Second Amendment claims in an effort to force New York state prosecutors to back off.

Some recent related posts:

• The many fascinating legal and social issues swirling around "sexting"
• Notable stories of sex and death from the local papers
• NYC Mayor Bloomberg pushing for Plaxico Burress to get at least 3½ years in state prison, leading me to many questions
• "Main Threat to Burress Is a Sentencing Law"
• Starting to make the Second Amendment case for Plaxico Buress  
• Talk of a plea deal to resolve gun charges against Plaxico Burress

Interesting pair of thoughtful sentencing rulings from the Seventh Circuit

As I continue to catch up on notable circuit rulings from last week when I was on the road, I came across two notable sentencing decisions from the Seventh Circuit.  Though covering quite different topics, both of these opinions merit attention and review because of the thoughtful engagement with defense arguments (even though the defendants wind up on the short end of the appeals):

• In US v. Nagel, No. 08-2535 (7th Cir. March 24, 2009) (available here), the panel rejects a federal sex offender's intriguing claim that his "mandatory minimum sentence violates the Fifth and Eighth Amendments to the United States Constitution because it is not subject to a 'safety valve' allowing for a sentence below the mandatory minimum term."

• In US v. Abbas, No. 07-3866 (7th Cir. March 26, 2009) (available here), the panel agrees with a defendant's claim of guideline sentencing error, but then goes on affirm the defendant's sentencing on the theory that the error was harmless.  Along the way, the panel effectively explores whether and when reasonableness review under Gall allows for harmless error analysis.

Thoughtful academic thoughts on ending marijuana prohibitions

Though President Obama last week gave too little respect or serious attention to the idea of legalizing marijuana in his on-line town hall meeting (background here), academics of late have been giving a lot of attention and respect to arguments for ending criminal prohibitions on marijuana.  Specifically, consider these notable articles that have all recently made appearances on SSRN:

• The End of the Red Queen's Race: Medical Marijuana in the New Century by Ruth C. Stern and J. Herbie DiFonzo

• A Great Schism: Social Norms and Marijuana Prohibition by Matthew A. Christiansen

• Legalizing Federal Crime: The Example of State Medical Marijuana Laws by Robert A. Mikos

• Liberty Lost: The Moral Case for Marijuana Law Reform by Eric D. Blumenson and Eva S. Nilsen

• No Rational Basis: The Pragmatic Case for Marijuana Law Reform by Eric D. Blumenson and Eva S. Nilsen

"Shrinking State Budgets May Spring Some Inmates"

The title of this post is the title of this piece from NPR's "Morning Edition."  Here is an excerpt:

This month, Kentucky Gov. Steve Beshear signed a law sending hundreds of drug offenders to treatment instead of prison. It's expected to save the state millions. Kansas, Montana and Pennsylvania are now doing the same. Other states are facing more drastic measures. California, South Carolina and Utah are considering letting thousands of inmates out early.

"This is a big bill that's coming due from a lot of overheated rhetoric from the '80s and '90s," said Adam Gelb, who studies prison costs for the Pew Center on the States. Gelb says prisons now house too many nonviolent property and drug offenders that never would have been sent to long prison terms in the past. "As we cast the correctional net wider and wider," he said, "we caught smaller and smaller fish."

But Tom Sneddon, of the National District Attorneys Association, says states should think carefully before they upend laws that he says reduced crime. He says there's no such thing as a small fish. "There aren't people sitting in prison that don't belong there," he said.

Sneddon says that in the 30 years he spent as a prosecutor, drug offenders were often charged with multiple crimes. But he says they're usually offered a plea deal for just one charge, making it seem as though they have been sent to prison on a single small charge. "To balance a budget on law enforcement and public safety's expense is not a wise policy decision to be made," he said.

Some recent related posts:

• The state of cost problems in the states of prison nation
• How many states are being forced by economic realities to consider releasing prisoners?
• Will we invest in classrooms or cells in these tough times?
• States considering laying off the death penalty during tough economic times
• "To save money on prisons, states take a softer stance"
• "To Cut Costs, States Relax Prison Policies"

Talk of a plea deal to resolve gun charges against Plaxico Burress

Though press accounts are varied, this New York Times piece is reporting on a possible plea deal for football star Plaxico Burress to resolve his pending gun charges.  Here are the particulars of the report:

A plea deal is being seriously considered in the gun possession case against Plaxico Burress, the New York Giants’ wide receiver, and it appears likely that any agreement would require him to serve at least some time behind bars, a law enforcement official said on Sunday.

The details had not been finalized. Mr. Burress had been scheduled to appear at a hearing Tuesday in Manhattan Criminal Court, but his lawyer, Benjamin Brafman, said Monday that no plea agreement would be announced Tuesday and that the hearing would be postponed to another day.

Mr. Burress, 31, who caught the winning touchdown in the Giants’ Super Bowl victory in February 2008, turned himself in to the police on Dec. 1, nearly three days after he accidentally shot himself in the leg with an unlicensed handgun at a nightclub in Manhattan.  Mr. Burress was charged with two counts of second-degree criminal possession of a weapon, which carry a mandatory minimum sentence of 3½ years in prison if convicted.

Prosecutors commonly offer reduced charges in gun possession cases, taking into consideration things like a defendant’s criminal history, the reason for carrying the gun and the circumstances surrounding an arrest.  In Mr. Burress’s case, prosecutors may consider that he had been cooperative and that he did not appear to have a dubious motive in carrying the gun....

Last year, 986 cases in New York involving the same charges as Mr. Burress faces were resolved, and 90 percent of them resulted in convictions for less serious crimes, half of them misdemeanors or violations, said John M. Caher, a spokesman for the New York State Division of Criminal Justice Services.

The reduced charges in such cases include crimes like third-degree gun possession or attempted possession. Convictions on those charges allow for sentences of two years or less.

Alicia Maxey Greene, a spokeswoman for the Manhattan district attorney’s office, declined to comment on the case. Mr. Brafman would not discuss details of the negotiations, and the Giants and the N.F.L. also declined to comment.

Though I do not find a plea deal at all surprising, the academic in me was hoping that we might get a sentencing and Second Amendment showdown in this high-profile case.  Regular readers might recall that NYC Mayor Michael Bloomberg had called for Burress to be "prosecute[d] to the fullest extent of the law" and suggested he should serve the mandatory minimum sentence of 3½ years in prison for his crimes.  And, on the other side, at least one prominent Second Amendment advocate called for Burress to challenge his prosecution as unconstitutional in the wake of Heller.

Related posts on the Plaxico Burress case:

• NYC Mayor Bloomberg pushing for Plaxico Burress to get at least 3½ years in state prison, leading me to many questions
• "Main Threat to Burress Is a Sentencing Law"
• Starting to make the Second Amendment case for Plaxico Buress  
• If instant polling matters in criminal justice administration, Plaxico may be in trouble
• Interesting data on the application of NY gun law for Plaxico's consideration

UPDATE:  This Newsday commentary, headlined "Plaxico doesn't deserve pass: If Burress gets off easily, it will be celebrity justice," makes the case for throwing the book at Burress:

In this one, the evidence is so clear-cut it is laughable.  Everybody agrees that Burress had the gun in his possession. Everybody agrees that it was unlicensed.  Everybody agrees that it was loaded, because a round wound up passing through Burress' thigh.

Mayor Bloomberg has publicly called for Burress' head, and Morgenthau seeks and obtains more convictions and jail terms than any other borough for offenders in gun cases.

Hopefully, that will be enough to offset the strongest thing Burress and his lawyer have on their side — that he is rich and famous and has thousands of mindless idolaters out there who would like to see him walk under any circumstances.

Ninth Circuit panel splits over adequacy of sentencing explanation

The Ninth Circuit has a long set of opinions covering lots of sentencing ground today in US v. Carter, No. 05-50303 (9th Cir. March 30, 3009) (available here).  Though all practitioners in the Ninth Circuit will want to check out this opinion, the case is more broadly notable because of the panel's split view over the adequacy of the district court's explanation for its long within-guideline sentence.  Here is a part of the partial dissent from Judge Tashima, which reveals the nature of the dispute:

[I]n imposing sentence, the court gave no indication that it had heard Carter’s arguments and imposed sentence with almost no explanation. I believe that the district court erred in failing to address Carter’s arguments, failing adequately to consider the § 3553(a) factors, and failing adequately to explain the sentence that was imposed....

Carter asked the court to apply the statutory mandatory minimum sentence of 360 months — a sentence already many times longer than those of his coconspirators. He argued that his criminal history category was overrepresented.... Carter asked the court to exercise its discretion and impose a below-guidelines sentence, taking into consideration his difficult childhood, his family situation and his young children, and the rehabilitative effect of what would be, under the statutory minimum, thirty years in prison.

Rather than addressing any of Carter’s arguments, the court applied the guidelines sentence, stating that the guidelines had “adequately taken into consideration [Carter’s] actions and criminal history,” and that the “lengthy sentence is sufficiently punitive and hopefully will deter against any further criminal activity.” This rote recitation of a few of the § 3553 factors does not begin to constitute “an individualized assessment based on the facts presented.”  Gall, 128 S. Ct. at 597.  Moreover, the court’s simple affirmative responses to the government’s pointed questions regarding Carter’s arguments do not provide a record that “makes clear that the sentencing judge listened to each argument.”  Rita v. United States, 127 S. Ct. 2456, 2469 (2007).

Relying on Ninth Circuit precedents in which little was said by a district court when imposing a within-guideline sentence, the majority in Carter was not so troubled by the procedural reasonableness of what happened in the district court.

NY Times editorial backs Senator Jim Webb's reform plans

This morning the New York Times has this editorial, titled "Reviewing Criminal Justice," which praises Senator Jim Webb's crime and punishment reform bill.  Here are excerpts:

America’s criminal justice system needs repair.  Prisons are overcrowded, sentencing policies are uneven and often unfair, ex-convicts are poorly integrated into society, and the growing problem of gang violence has not received the attention it deserves. For these and other reasons, a bill introduced last week by Senator Jim Webb, Democrat of Virginia, should be given high priority on the Congressional calendar.

The bill, which has strong bipartisan support, would establish a national commission to review the system from top to bottom.  It is long overdue, and should be up and running as soon as possible....

Keeping people in prison who do not need to be there is not only unjust but also enormously expensive, which makes the problem a priority right now.  Hard-pressed states and localities that reduce prison costs will have more money to help the unemployed, avert layoffs of teachers and police officers, and keep hospitals operating....

The commission would be made up of recognized criminal justice experts, and charged with examining a range of policies that have emerged haphazardly across the country and recommending reforms. In addition to obvious problems like sentencing, the commission would bring much-needed scrutiny to issues like the special obstacles faced by the mentally ill in the system, as well as the shameful problem of prison violence.... 

There is no companion bill in the House, and one needs to be written.  Judging by the bipartisan support in the Senate, a national consensus has emerged that the criminal justice system is broken.

Relatedly, NPR's program "All Things Considered" had this segment on Senator Webb's reform efforts. Here is the set up:

Sen. Jim Webb introduced legislation last week establishing a blue-ribbon commission to retool the nation's prison system. The Virginia Democrat talks to host Jacki Lyden about the bill and why he feels the criminal justice system has to change.

Some related (old and new) posts:

• My latest (academic?) musings about progressive punishment perspectives
• How many states are being forced by economic realities to consider releasing prisoners?
• Will we invest in classrooms or cells in these tough times?
• Senator Jim Webb continues his important campaign for serious sentencing and prison reforms
• Senator Jim Webb takes his concerns about prison nation to the next level
• Why is Senator Jim Webb the only national figure focused on the prison economy?
• (Too) little coverage of JEC hearing on US drug policy
• Upcoming JEC hearing on costs of US drug policy
• Congressional hearing on mass incarceration
• More on the JEC hearing on mass incarceration
• Great TNR coverage of JEC hearing on mass incarceration

The many fascinating legal and social issues swirling around "sexting"

I had a chance to read closely this federal complaint filed last week by the ACLU of Pennsylvania against a local district attorney who threatened three high school girls with child porn charges for appearing partially undressed in (provocative?) cell-phone pictures.  The complaint details the remarkable ways in which the local DA exercised his prosecutorial discretion in response to a "sexting" problem in a local school, and it asserts that his actions violated both the kids' First Amendment expression rights and their parents' rights to control their children's upbringing.

This interesting complaint confirmed my sense that there are an array of fascinating legal and social issues surrounding the phenomenon of "sexting."  And the Newark Star-Ledger had this effective article, headlined "A debate swirls over teens' lurid pictures: Should self-portraits draw harsh penalties?," highlighting that these issues are arising in many places in many different ways:

In Indiana, a middle-school boy faces obscenity charges for transmitting naked photos of himself to female classmates.  And last week in Passaic County, authorities accused a 14-year-old Clifton girl of distributing child pornography, saying she posted nude portraits of herself on MySpace.

In a growing number of states, law enforcement agencies are cracking down on teens who use cell phones and social networking sites to share lurid photographs.  Prosecutors say they are trying to stamp out a dangerous trend.  But their use of stringent child-pornography and sex-offender laws has ignited a debate.  "Do we really want to tag this 14-year-old girl as a sex offender for the next 30 years?" asked Bill Albert, spokesman for the National Campaign to Prevent Teen and Unplanned Pregnancy.  "Communities nationwide are scratching their heads about what role, if any, law enforcement should play in these cases."

A key hurdle for prosecutors is that technology has outpaced the legal system.  Most states don't have laws specifically addressing teens who transmit explicit images, a practice sometimes referred to as "sexting."

The only New Jersey laws applicable to the Clifton case are those designed for sexual predators and child pornography traffickers, said Parry Aftab, executive director of the nonprofit group WiredSafety.org.  Authorities suspect the 14-year-old, arrested Tuesday, took and posted nearly 30 explicit images of herself for her boyfriend to see.  If true, it makes for an unusual criminal case: The victim is also the perpetrator.

Any new or aspiring law professor might do well to start a sexting law and policy blog.  The combination of issues here — involving juvenile sexuality and criminality, severe child porn laws, new technologies, legal uncertainty and prosecutorial discretion, and constitutional law — all but ensures that sexting topics will draw lots of legal and social attention for quite some time.  Anyone who tracks major sexting cases and debates — and thus becomes an academic expert on these matters — likely will have their phone constantly ringing and an always full e-mail in-box.

Rapper T.I. defends his special plea and sentencing deal

Recently sentenced rapper T.I. is talking about his sentencing fate in ways that may add heat to the debate over whether he got special treatment.  This MTV story has some of the choice quotes from T.I.'s first post-sentencing interview:

The sentencing judge called it "experimental." The U.S. attorney who helped broker the arrangement called it "unique."  And T.I. himself acknowledged that his plea deal — which reduced a potential 10-year prison term into community service and, more than likely, less than a year's worth of jail time — was "an opportunity."

T.I. wasn't the recipient of the plea deal because he snitched, he's often said.  Nor did he get the benefit of the doubt from the legal system because he's rich.  Tip landed his plea deal due to a combination of his fame, his familiar troubled past and his ability to recount his transformation from trap star to rap star as a means of influencing at-risk youth.

"If they would have gave Joe Blow, who got arrested with guns the next day or the next week — if [the court] would have gave him my deal, could he have turned around and given as much back to the community as I have? No he couldn't,"  T.I. told MTV News....  "I showed I was worthy of this and this was something possible," Tip continued. "So they decided the opportunity was worth the chance."

Why isn't there more constitutional litigation over the "hellhole" that is extended solitary confinement?

Today I finally found the time to read this terrific examination of solitary confinement appearing in the March 30 issue of The New Yorker.  The piece by Atul Gawande is titled "Hellhole: The United States holds tens of thousands of inmates in long-term solitary confinement. Is this torture?". Here are just a few choice snippets from a piece that merits a full read:

Most hostages survived their ordeal [involving solitary confinement] although relationships, marriages, and careers were often lost.  Some found, as John McCain did, that the experience even strengthened them.  Yet none saw solitary confinement as anything less than torture.  This presents us with an awkward question: If prolonged isolation is — as research and experience have confirmed for decades — so objectively horrifying, so intrinsically cruel, how did we end up with a prison system that may subject more of our own citizens to it than any other country in history has?...

Prison violence, it turns out, is not simply an issue of a few belligerents. In the past thirty years, the United States has quadrupled its incarceration rate but not its prison space.  Work and education programs have been cancelled, out of a belief that the pursuit of rehabilitation is pointless.  The result has been unprecedented overcrowding, along with unprecedented idleness — a nice formula for violence.  Remove a few prisoners to solitary confinement, and the violence doesn’t change.  So you remove some more, and still nothing happens. Before long, you find yourself in the position we are in today.  The United States now has five per cent of the world’s population, twenty-five per cent of its prisoners, and probably the vast majority of prisoners who are in long-term solitary confinement.

It wasn’t always like this.  The wide-scale use of isolation is, almost exclusively, a phenomenon of the past twenty years.  In 1890, the United States Supreme Court came close to declaring the punishment to be unconstitutional.  Writing for the majority in the case of a Colorado murderer who had been held in isolation for a month, Justice Samuel Miller noted that experience had revealed “serious objections” to solitary confinement...

Prolonged isolation was used sparingly, if at all, by most American prisons for almost a century. Our first supermax — our first institution specifically designed for mass solitary confinement — was not established until 1983, in Marion, Illinois.  In 1995, a federal court reviewing California’s first supermax admitted that the conditions “hover on the edge of what is humanly tolerable for those with normal resilience.”  But it did not rule them to be unconstitutionally cruel or unusual, except in cases of mental illness.  The prison’s supermax conditions, the court stated, did not pose “a sufficiently high risk to all inmates of incurring a serious mental illness.”  In other words, there could be no legal objection to its routine use, given that the isolation didn’t make everyone crazy. The ruling seemed to fit the public mood.  By the end of the nineteen-nineties, some sixty supermax institutions had opened across the country.  And new solitary-confinement units were established within nearly all of our ordinary maximum-security prisons.

The number of prisoners in these facilities has since risen to extraordinary levels.  America now holds at least twenty-five thousand inmates in isolation in supermax prisons.  An additional fifty to eighty thousand are kept in restrictive segregation units, many of them in isolation, too, although the government does not release these figures.  By 1999, the practice had grown to the point that Arizona, Colorado, Maine, Nebraska, Nevada, Rhode Island, and Virginia kept between five and eight per cent of their prison population in isolation, and, by 2003, New York had joined them as well.  Mississippi alone held eighteen hundred prisoners in supermax — twelve per cent of its prisoners over all....

This past year, both the Republican and the Democratic Presidential candidates came out firmly for banning torture and closing the facility in Guantánamo Bay, where hundreds of prisoners have been held in years-long isolation.  Neither Barack Obama nor John McCain, however, addressed the question of whether prolonged solitary confinement is torture.  For a Presidential candidate, no less than for the prison commissioner, this would have been political suicide.  The simple truth is that public sentiment in America is the reason that solitary confinement has exploded in this country, even as other Western nations have taken steps to reduce it.  This is the dark side of American exceptionalism.  With little concern or demurral, we have consigned tens of thousands of our own citizens to conditions that horrified our highest court a century ago....  In much the same way that a previous generation of Americans countenanced legalized segregation, ours has countenanced legalized torture.  And there is no clearer manifestation of this than our routine use of solitary confinement — on our own people, in our own communities, in a supermax prison, for example, that is a thirty-minute drive from my door.

The article's efforts to draw parallels in this last paragraph to segregation and GTMO help spotlight my own belief that constitutional lawyers and policy policy groups have been complicit, at least indirectly, in the growth of solitary confinement in prison nation.  A generation ago, many civil rights lawyers and policy policy groups attacked segregation through constitutional court battles.  And, in modern times, many lawyers and public policy groups have be actively attacking GTMO, as well as just about every aspect of the death penalty.  But, while a few hundred accused terrorists and murderers have lots and lots of constitutional lawyers and activists running to court on their behalf, many thousands of lesser criminals confined to the hellhole of supermax prisons languish with very few persons even thinking about their plight, let alone fighting in court on their behalf.

Some related posts:

• Great NPR series on solitary confinement
• More on Supermax, human dignity, and public safety
• Seventh Circuit ruling spotlighting Supermax realities
• The case against supermax
• Effective NPR coverage of supermax prisons and solitary confinement
• Inaugural rhetoric about freedom and liberty in prison nation
• My latest (academic?) musings about progressive punishment perspectives

UPDATE: NPR's program "All Things Considered" had this segment on the article and the topic of solitary confinement.  Here is the set up:

Humans are social animals; deprived of regular contact, we lose our minds. And that's just what's happening in solitary confinement cells across the country — that according to surgeon and author Atul Gawande, whose article in the current issue of New Yorker magazine looks at the effects of extended solitary confinement. Gawande talks to host Jacki Lyden about the personal toll of solitary confinement.

A pretty good week in the circuits for a few federal defendants

Because I was on the road most of last week, I was unable to effectively keep up with all the circuit sentencing rulings.  But my quick review of the circuit week that was seems to suggest that a few federal defendants did better than usual with sentencing appeals in the circuits.  Specifically, defendants got victories in all these cases:

• United States v. Recla, No. 07-1252 (6th Cir. March 25, 2009) (available here)
• United States v. Chase, No. 08-1804 (8th Cir. March 25, 2009) (available here)
• United States v. Mejia, No. 06-50220 (9th Cir. March 24, 2009) (available here)
• United States v. Delgadillo, No. 07-5922 (6th Cir. March 24, 2009) (unpublished) (available here)

None of these rulings seem especially ground-breaking, but victories for defendants on sentencing appeals are rare enough to make these cases still noteworthy.  (And, of course, defendants lost a lot more sentencing appeals last week than they won).

Will AG Holder change DOJ sentencing practicies that seem inconsistent with "the rule of law, equality before the law, and the applicability of Due Process"?

As detailed in this post at The BLT, Attorney General Eric Holder was officially installed in his position just this past Friday in a formal ceremony in which he gave this speech.  Though many might view AG Holder's speech as filled with "rah-rah" Justice Department boiler-plate, this paragraph stood out to me:

Ours is a nation of laws, guided by principles that reflect the essential goodness of the American people. Many of these values – adherence to the rule of law, equality before the law, and the applicability of Due Process – are as well-known as they are timeless.  And yet, these principles can only truly be the animating force of our legal system if we, both individually and collectively, make it so. That is why, Mr. President, I pledge to you, to my fellow Department of Justice employees, and to the American people as a whole that I will lead a Department of Justice that is firmly rooted in, and solely guided by, these sacred principles.  In all that we do, in all that requires us to make the difficult judgments that must withstand the scrutiny of the ages, these values will serve as our eternal touchstone.

Sounds good to me, and I truly hope that these "sacred principles" serve as a "sole guide" and an "eternal touchstone" for all the important work of the Department of Justice in the months and years ahead.  And, with all due respect, I must assert that, in order to truly live up to these principles, all the folks at DOJ need to seriously reconsider certain of its sentencing policies and practices. 

Though one might make a pretty long list of DOJ sentencing practices that seem inconsistent with "adherence to the rule of law, equality before the law, and the applicability of Due Process," in my view these five particular practices justify immediate attention by the new AG:

1. lack of consistency and transparency concerning child porn prosecutions and plea deals;
2. lack of consistency and transparency concerning "fast-track" departure motions;
3. lack of consistency and transparency concerning "substantial assistance" departure motions
4. frequent (and also inconsistent) inclusion of appeal waivers in plea agreements
5. aggressive reliance on acquitted conduct in guideline calculations to enhance sentences

In areas 1-4 above, opaque and unregulated discretion seems far more prominent than equality and due process.  And both area 4 and 5, in my view, seem inconsistent with historical conceptions of due process and even the "essential goodness of the American people." 

Commentors are, of course, welcomed and encouraged to spotlight other DOJ policies and practices that seem to be inconsistent with the "sacred principles" that AG Holder has pledged to champion.

Death penalty news and notes

While I was on the road last week, I was not able to keep up with various death penalty developments.  Fortunately, there are no shortage of website to which one can turn for catching up, and there are lots of new items at these anti-DP sites:

• Capital Defense Weekly
• Death Penalty Information Center
• StandDown Texas Project

Noting the Second Amendment dogs that did not bark in Hayes

Now available via SSRN is this effective little piece of student scholarship commenting on the Supreme Court's work last month in US v. Hayes upholding a gun possession conviction for a misdemeanant.  The piece is is titled "To Heller and Back: Why Many Second Amendment Questions Remain Unanswered After United States v. Hayes," and here is the abstract:

In District of Columbia v. Heller, the U.S. Supreme Court held that the Second Amendment protects an individual right to possess firearms.  More recently, in United States v. Hayes, the Supreme Court upheld a federal statute which criminalizes the possession of firearms by persons previously convicted of misdemeanor domestic violence offenses.  This essay argues that the Hayes decision cannot be squared with the individual right to keep and bear arms enunciated in Heller.

Some related Second Amendment posts:

• SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
• Even the Chief and Justice Scalia are content to damn gun possession with faint praise
• Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?
• Justice Scalia sells out felon gun rights, but on what basis exactly?
• The lack of originalist justification for excluding felons from the Second Amendment
• Assailing the unjustified Second Amendment limits in Heller
• "Why Can’t Martha Stewart Have a Gun?"
• What might 2009 have in store for . . . Second Amendment jurisprudence?

Will there be retroactive sentencing justice for drug defendants in New York?

This New York Times article, headlined "Deal on State’s Drug Laws Means Resentencing Pleas," suggests that the plans to reform New York's Rockefeller drug laws include provisions allowing some past sentenced defendants to obtain resentencings:

An agreement reached by Gov. David A. Paterson and legislative leaders this week to give judges more flexibility to determine drug sentences would also allow hundreds of people currently in prison for nonviolent drug offenses to ask a judge to resentence them, the governor said Friday.

The proposal, which sweeps away much of what is left of the Rockefeller-era drug laws, would also create new categories of crimes for so-called drug kingpins and people who sell drugs to children. Mr. Paterson and legislators hailed the plan’s central elements — which would give judges the option of sending many low-level drug offenders to treatment instead of prison even if a prosecutor objects — as sweeping and historic changes in the state’s criminal justice policy....

Mindful of the objections of prosecutors and some Republicans who have criticized the proposal as too lenient on offenders caught with large quantities of drugs, supporters of the plan stressed the new laws’ enhanced criminal penalties. “This is designed to ensure that those who suffer from addiction go to treatment and that those who profit from addiction go to prison,” said Senator Eric T. Schneiderman, a Manhattan Democrat who has led the Senate’s effort to revise the drug laws.

But, as detailed in this Buffalo News article, headlined "Plan to soften state drug laws ignites political storm," nobody should be counting their resentencing chickens yet.  This piece notes Republican and law enforcement opposition to the reform plans and it ends with this notable quote:

The Republicans may be in the minority in Albany, but they’re vowing a spirited fight here.  “I don’t think it’s over yet,” [Sen. Dale M.] Volker said. “We’re going to do everything we can to weaken [the agreement] and try to modify it, so it doesn’t kill the criminal-justice system.”

Some recent related posts on reforming NY drug sentencing:

• New York commission calling for major drug sentencing reforms
• New York getting closer to dropping the rock
• Might prosecutors keep New York from finally "dropping the rock"?
• New NYCLU report on Rockefeller drug laws
• New York drug sentencing laws finally to get serious reform

Good readings on Senator Webb's courage and Prez Obama's pot shot

This week brought some very different examples of politicians taking very different approaches to national crimes and punishment issues.  And some of my favorite on-line commentaors have these good discussions of what we should take away from what we all saw:

Consider first the work of Glenn Greenwald here at Salon.com, who provides important and spot-on commentary headlined "Jim Webb's courage v. the 'pragmatism' excuse for politicians."  Because this piece hits so many important points, I likely will have more to saw about this commentary and Senator Webb's courage in future posts. 

Now consider the contrast provided by the folks at Reason through these posts about President Obama's response in his town hall to inquiries about legalizing marijuana:

• Obama on Pot: Har Har Har, The Joke's On You!
• The War on Drugs is No Laughing Matter: It's time for Barack Obama to take legalization seriously
• More About Obama's Ditchweed-Level Response to That Marijuana Question

Should we ban all repeat drunk drivers from ever driving again?

My local paper had this story about the sentencing of another repeat drunk driver guilty of killing another innocent victim.  These stories are all too common and fuel my general eagerness to get extra tough on repeat drunk drivers.  But a notable extra facet of the sentence is what prompted me to blog about this particular case:

A Columbus man was sentenced yesterday to four years in prison for a hit-and-run crash that killed a bicycle rider in 2007.  Spencer Andrews, 26, of Maxwelton Court, also is banned from driving for life, Franklin County Judge Richard S. Sheward ruled....

His attorney, Robert Krapenc, said Andrews regrets not stopping on the dark roadway after hitting Sonney. Andrews has sought counseling about the crash, Krapenc said, but was advised not to contact the Sonney family before sentencing.  "He knows he is going to spend time in prison and he's said he knows he deserves it," Krapenc told the judge.

Traci Sonney told the judge that her son wanted to be a teacher and planned to study art at the Columbus College of Art & Design.  "With his passion for life and the creativity he had, he would have been a powerful, powerful motivator," Mrs. Sonney said. "You left my son mowed down. You're never going to know what you did to my family."

She said Andrews didn't learn from his drunken-driving conviction three years ago. And she asked Sheward to send a message to other hit-and-run drivers.  But she left the courtroom in despair after she heard the sentence.  "It's not enough," she said, crying outside.

Though others can comment on whether a four-year prison sentence was enough for the defendant here, I found especially interesting that this relatively young defendant is now "banned from driving for life."  I do not think I can recall hearing of another sentence that included a lifetime driving ban, but it strikes me as a fairly sensible sentencing provision for some (perhaps all) repeat drunk drivers.

Of course, it may be hard to effectively enforce a lifetime driving ban on all repeat drunk drivers.  But it is also hard to enforce lifetime gun possession bans on all felons and to enforce broad living restrictions on all sex offenders, and yet we still continue with such restrictions because of the threats we believe are posed by felons with guns and sex offenders.  As this story reminds us, because we have good reason to worry about the threats of posed by drunk drivers to innocent lives, the challenges of enforcing lifetime driving bans on repeat drunk drivers should not alone dissuade us from considering this approach to keep the roads safe. 

New York drug sentencing laws finally to get serious reform

As detailed in these links, the AP and Reuters are now reporting that reform of the New York Rockefeller drug laws are a done deal:

• New York to ease its landmark tough drug laws

• NY eases drug laws, sees annual savings of $250 mln

I will remain chary of any celebration until the Rock reform law is signed, sealed and delivered.  But I do think that all the folks who have been working on this issue for so long may have an extra reason to celebrate this weekend (but let's keep it legal, sports fans).