Sentencing Law and Policy

Notable new article on "Appellate Review of Sentence Explanations"

I see from this post at Prawfs that Michael O'Hear has another important new piece on SSRN about sentencing explanations.  This new piece is titled "Appellate Review of Sentence Explanations: Learning from the Wisconsin and Federal Experiences," and here is the abstract:

For at least half a century, reformers have urged American appellate courts to play a more active role in the sentencing process. Outside a small number of jurisdictions with binding sentencing guidelines, however, the appellate courts have generally failed to establish a meaningful role for themselves.

The present article focuses on one particular function that appellate courts might usefully perform: that is, reviewing the adequacy of the explanations given by trial-court judges to justify their sentencing decisions. Such “explanation review” is conceptually distinct from substantive review of the sentence: the former asks whether the sentence has been adequately justified, while the latter asks whether the sentence could be adequately justified. As a matter of formal doctrine, explanation review is already an accepted feature of the sentencing law in several jurisdictions. But courts have struggled to give the explanation requirement coherent content, and few sentences are actually overturned on the basis of inadequate explanation. The difficulties may stem, in part, from the courts’ failure to appreciate what may be achieved through rigorous explanation review.

Against this backdrop, the purposes of the present article are threefold. First, the article makes the case for robust explanation review, identifying several useful purposes that are plausibly served by a systematically enforced explanation requirement. Second, the article describes and critiques the explanation review jurisprudence in two specific jurisdictions, Wisconsin and the federal system. Finally, drawing on the best parts of the Wisconsin and federal case law, the article proposes a set of principles that may be used to give explanation review more precise and rigorous content.

Another stiff sentence for a Ponzi schemer

Perhaps this local sentencing story reflects the echo effect of Bernie Madoff getting maxed out at his federal sentencing:

It may not be as wide-ranging as the theft orchestrated by Wall Street investor Bernard Madoff, but the $6 million stolen by Glyn Richards still destroyed dozens of lives.  So for his crimes, Richards will spend 30 years in federal prison.

Richards, 45, pled guilty last year to setting up a fake freight company: All Freight Logistics, Inc. in Audubon, N.J. From that office, he ran a Ponzi scheme that bilked more than 100 investors out of $5.8 million. In exchange for a hefty buy in — ranging from $25,000 to more than $100,000 — prosecutors say Richards promised his investors quick and big returns.  He told them he was about to land a government defense contract....

Nearly a year after he pleaded guilty, dozens of victims packed the courtroom to hear Richards' sentence.  Several made impassioned pleas for the judge to issue the maximum sentence.

In a move that surprised even prosecutors, Renée Marie Bumb went beyond the federal guidelines in handing Richards 30 years. She said it was "one of the most despicable crimes imaginable."

"It doesn't take a life — like a violent crime does, but it does destroy life," Bumb said.  "I think you are a con man.  You have been and you always will be.  I think you'll be pulling a scam when you walk out the gates of prison."

Seventh Circuit rejects broad-side attack on child porn guidelines

The Seventh Circuit today handed down an intriguing little per curian opinion dealing with the federal child porn guidelines in US v. Huffstatler, No. 08-2622 (7th Cir. June 30 2009) (available here). Here are the choice quotes:

[W]e need not ultimately decide whether Kimbrough gives district courts the discretion to disagree with the child-pornography guidelines on policy grounds, because Huffstatler does not contend that the district court abused its discretion. See United States v. Taylor, 520 F.3d 746, 747-48 (7th Cir. 2008).  He argues instead that the methodological flaws that supposedly run through the child-pornography guidelines invalidate them entirely.  Thus, he submits, not only may a district court sentence below the child-exploitation guidelines based on policy disagreements with them, it must.

Huffstatler’s stance is untenable.  His argument is based on analogy to the crack guidelines, yet those guidelines remain valid, even after Kimbrough.  See United States v. Roberson, 517 F.3d 990, 995 (8th Cir. 2008).  Judges are not required to disagree with them; a within-guidelines sentence for a crack offense may be reasonable. Id.; see also United States v. Lopez, 545 F.3d 515, 516-17 (7th Cir. 2008) (affirming a within-guidelines sentence for possession with intent to distribute crack).  The child-exploitation guidelines are no different: while district courts perhaps have the freedom to sentence below the child-pornography guidelines based on disagreement with the guidelines, as with the crack guidelines, they are certainly not required to do so.  Because the district court was not obligated to sentence Huffstatler below the range recommended by valid sentencing guidelines, Huffstatler cannot establish error, let alone plain error.

Latest FSR issue, "On the Shoulders of Giants," now available on-line

I am very pleased to report that the latest issue of the Federal Sentencing Reporter is available on-line.  The issue is titled "On the Shoulders of Giants," and Professors Steven Chanenson and Marc Miller were the the chief editors who assembled a great set of articles honoring the gigantic sentencing reform work done by Marvin Frankel and Daniel Freed and Norval Morris in their careers.

The Table of Connects for this latest FSR issue can be accessed at this link, and all the articles are available electronically here .  (A full subscription to the Federal Sentencing Reporter can be ordered on-line here.)  Here is a portion of the Editors' Notes that preview the issue and notes the event that inspired it:

This issue celebrates a professional milestone for this journal and expresses the personal joy of long and close friendships for those of us at the Federal Sentencing Reporter.

In August 2008, in our twentieth year of publication, FSR cosponsored our first symposium in honor of sentencing giants Daniel J. Freed and Norval R. Morris.  This issue adds coverage of sentencing giant Judge Marvin Frankel.  The symposium was integrated into the Annual Conference of the National Association of Sentencing Commissions (NASC), which benefited at that time from the able leadership of Jack O’Connell, Jr., the long-serving director of the Delaware Statistical Analysis Center.  The symposium could not have happened without the full partnership and support of three institutions — NASC, our intellectual home and publishing partner the Vera Institute of Justice (in New York), and the excellent Stanford Criminal Justice Center.

The Stanford Criminal Justice Center, based at Stanford Law School, is run by the brilliant team of Bob Weisberg and Kara Dansky.  Working from a sustained effort to fix California’s troubled systems of sentencing and punishment, they have made the search for wisdom in other systems and through the interaction of scholars, legislators, judges, and other policy actors a hallmark of the center. Weisberg and Dansky recognized that this approach echoes through the careers of Freed and Morris.

It was particularly fitting for the NASC Conference to be the setting for these remarks.  NASC is a unique organization that comprises people interested in sentencing and includes members and staff of sentencing commissions, judges, public officials, lawyers, academics, and other practitioners. It is one of the few places where people from these varied — but interdependent — backgrounds meet and exchange ideas. Most of the contributions in this issue stem from this symposium.

Other recent FSR issues:

• FSR Issue 21.3: "Second Look" Sentencing Reforms
• FSR Issue 21.2: Sex Offenders: Recent Developments in Punishment and Management
• FSR Issue 21.1: Thoughts for the U.S. Sentencing Commission
• FSR Issue 20.5: American Criminal Justice Policy in a "Change" Election
• FSR Issue 20.4: Debates and Realities Surrounding Crack Retroactivity
• FSR Issue 20.3: White-Collar Sentencing
• FSR Issue 20.2: Prisoner Reentry

Should SCOTUS or USSC resolve circuit split on who counts as a fraud victim?

The National Law Journal has this new piece noting a circuit split over who counts as a victim for a guideline enhancement in fraud cases.  The article is headlined, "Circuits split on sentencing for financial fraud —  At issue is whether people who are reimbursed for financial losses from criminal schemes should be counted as victims," and here are snippets:

The U.S. Court of Appeals for the 1st Circuit last Friday waded into a growing circuit split over how tough judges can be on defendants accused of financial fraud.  At issue is whether judges should count people who are reimbursed for financial losses from criminal schemes as victims when deciding whether to increase a defendant's sentence.

In a pair of opinions, Judge Kermit V. Lipez, writing for unanimous 1st Circuit panels, upheld 72-month sentences for defendants who were accused of stealing debit card numbers, personal identification numbers, credit card numbers, and ultimately money, from customers of Stop & Shop supermarkets in Rhode Island.  The cases are United States v. Stephanian and United States v. Ter-Esayan.

Federal sentencing guidelines allow for a sentence enhancement for financial crimes like embezzlement and fraud if there are more than 250 victims.  Regarding defendant Mikael Stephanian, Lipez concluded that "the card holders bore the first part of the total losses before the funds were restored" and were unable to access the money the defendants withdrew from their account for a period of time....

That's in line with a 2005 ruling by the 11th Circuit in United States v. Lee, which considered reimbursed persons as victims.  Lipez wrote that the court was rejecting the position of the 6th Circuit in a case, United States v. Yagar, that account holders did not suffer "actual pecuniary harm" because they got their money back.  He noted similar rulings by the 3rd, 5th, 9th and 10 circuits.

Pat Harris of Los Angeles-based Geragos & Geragos, who represented Arman Ter-Esayan in the appeal, said he and his client are disappointed because so many circuits ruled the other way. "There's a real split in the circuits," Harris said.  "I think at some time the Supreme Court is going to have to take a look at this.  When you've got this prominent of an issue, at some point there's going to have to be some clarification."

Especially since the federal sentencing guidelines are supposed to help achieve nationwide consistency in sentencing law and policy, I agree that this circuit split needs to be resolved ASAP.  But, because the split involves a guideline interpretation issue, it is not clear that the Supreme Court must or even should be primarily in charge of providing needed clarification.  As the Supreme Court noted in the (too rarely discussed) Braxton case at the outset of the guideline era, it may make more sense for the US Sentencing Commission to resolve these issues through guideline amendments than for the Supreme Court to deal with the issue via adjudication.

One of my very first articles, Sentencing Commission as Guidelines Supreme Court: Responding to Circuit Conflicts, 7 Federal Sentencing Reporter 142 (1994), talked through this issue of who should respond to these kinds of conflict.  In that piece, I highlighted some of the pros and cons of the USSC rather than SCOTUS being primarily in charge of dealing with these kinds of issues.  And I continue to be unsure whether in general or in this particular fraud setting who should take charge of these kinds of splits.

Notable veto by Texas Gov of sex offender registration reforms

This local article from Texas, headlined "Gov. Rick Perry vetoes bill lifting sex offenders 21, younger from registry," spotlights an interesting development in the Lone Star State.  Here is how the piece starts:

Aaron Jernigan had just started college at age 18 and was planning a career as a music teacher when he met a girl at a party and his whole world changed.  Now 25, Jernigan finished a four-year prison sentence instead of a four-year degree.

He is trying to get on with his life, but a year out of prison he still cannot find work and has had to move twice because he will forever carry with him the black mark of a registered sex offender. "I was pretty much just a regular old kid in high school," he said.  "And they kinda threw away the key on me."

Last week, Gov. Rick Perry vetoed a bill that would have given people such as Jernigan the chance to try to have their names removed from the Texas sex offender registry.  Perry said the measure approved by legislators failed to protect young victims.

For Jernigan and other sex offenders like him, who got involved with young people close to their own age, the veto was a disappointment and a setback.  "We were already ready to get everything settled and get our lives back," Jernigan said.

Around the blogosphere

Lots of good new reading at some of my favorite criminal justice blogs:

• Crime and Consequences
• Grits for Breakfast
• StandDown Texas Project
• Think Outside the Cage
• White Collar Crime Prof

"Prisons in Africa: An Evaluation from a Human Rights Perspective"

The title of this post is the title of this interesting-looking article I just found on SSRN.  Here is the abstract:

While prisons in Africa are often considered the worst in the world many other prisons systems are worse off in terms of violence, overcrowding and a host of other problems.  This is not to argue that African prisons are human rights friendly.  Many are in a deficient condition and their practices are at odds with human rights standards.  However, prisons in many parts of the world are in crisis.  Never before have there been so many problems within penal systems and such large numbers of people in institutions of incarceration.  This article examines the historical development of African prisons from colonial times and considers the legacy that colonialism has left in prisons on the continent.  The article also examines a range of issues in prisons throughout Africa including pretrial detention, overcrowding, resources and governance, women and children in prison, and rehabilitation.  A substantial amount of space is devoted to the reforms that are occurring across the continent, and recommendations are made with regard to what further reforms are necessary.  The role of the African Commission on Human and Peoples' Rights as well as the Special Rapporteur on Prisons and Conditions of Detention in Africa are also considered.

Is deterrence of child porn offenses sought by federal harshness undermined by state leniency?

Regular readers know about the many federal child porn downloading cases in which the federal sentencing guidelines call for many years or even decades of imprisonment.  Federal prosecutors frequently defend these harsh sentencing terms by contending they are needed in order to send a message and deter others from getting involved in accessing child porn.  But this message and the goal of general deterrence must surely be undermined by this kind of local story noting a prominent child porn offender getting sentenced only to probation:

Thomas Adams, the former Green Oaks mayor and Lake County Republican chairman, was sentenced to probation Monday in his child pornography case.  Judge Patricia Golden, who was brought in from Kane County to hear the case, went along with a recommendation from a pre-sentencing investigation and prosecutor Patricia Fix's suggestion that Adams is suitable for probation.

Adams, 71, pleaded guilty in February to 16 counts of possession of child pornography, a Class 3 felony, which is punishable by up to five years in prison, but is also probationable. As part of his plea deal, more serious charges connected to the dissemination of child pornography were dropped....

Adams was arrested on July 24, 2006, after authorities discovered that he e-mailed pornographic photos to an undercover agent in Clearwater, Fla. He was charged with 33 counts of child pornography, including 11 counts for dissemination. The images mostly depicted young boys.  In the days after his arrest, Adams resigned as mayor and as leader of the Lake County Republican party.

Mark Pleasant, an investigator for Lake County State's Attorney's Office, said during the sentencing hearing that Adams got most of the photos through AOL Instant Messenger and AOL chat rooms.  In one online conversation, Adams discussed the possibility of having sex with an undercover agent's teenage sons, though it never progressed, Pleasant said.

It was 37 years ago today, SCOTUS jurists decided to play...

and the Justices have been in the business of regulating state administration of capital punishment ever since its ruling June 29, 1972 ruling in Furman v. Georgia (opinions available here; basics here and here). This is how Ed Whelan describes the decision in his NRO Bench Memos post today in "This Day in Judicial Activism":

In Furman v. Georgia five justices vote to overturn a death penalty as cruel and unusual punishment in violation of the Eighth Amendment but can’t agree on a rationale.  Each of the five justices instead issues his own opinion.  Despite the fact that the Fifth and Fourteenth Amendments expressly assume the existence of the death penalty, Justices Brennan and Marshall each assert that the death penalty is in every instance an Eighth Amendment violation.  The Court’s per curiam declaration creates massive confusion and requires states to rewrite their capital-sentencing laws.

I suspect that more than a few readers might have a different take on Furman, and I welcome any and all thoughts and insights in the comments concerning this historic ruling as it approaches middle-age.

A new white-collar benchmark: the main reason the number 150 matters in Madoff

As many people recognized in anticipation of Bernie Madoff's sentencing, any prison term of 20 years or more was a functional life sentence for the 71-year-old super Ponzi schemer.  And, notably, the presentence report for Madoff apparently recommended a term of 50 years, perhaps to give him a kind of break due to his decision to plead guilty and also because this was double the 25 years given to Bernie Ebbers for what was previously thought to be the biggest corporate fraud sentenced in New York federal courts.

But the government argued for a maximum permissible statutory sentencing term of 150 years in prison, and Judge Denny Chin apparently decided that only this term was "sufficient, but not greater than necessary" to achieve the purposes of punishment than Congress set out in 3553(a)(2).  And though the choice of this magic sentencing number of 150 years — as opposed to 30 years or 50 years or 100 years — really means very little to Bernie Madoff, it could end up meaning a lot to the government and to some future defendants as a new white-collar sentencing benchmark.

Before Madoff, defendants like Ebbers and Jeff Skilling and others prominent white-collar defendants who were sentenced to around 25 years often served as the functional benchmark for sentencing debates for corporate fraudsters.  In more than a few prominent white-collar cases, both the feds and defense attorneys would often compare and contrast the defendant to be sentenced to Ebbers and Skilling and the sentences they were given.  Now, the most prominent benchmark will be Madoff and the number 150.

Because there will be few other Madoffs (we all hope), I suspect that few other defendants will also get the magic number 150.  But if the original Madoff got only about 15 or 20 years in this case, lots of lesser fraudsters likely would be claiming that they deserved only a few years because Madoff caused so much more harm.  But now that Madoff got 150, only the prosecutors are likely to be talking about the sentencing benchmark that his case has now set.

UPDATE:  Ellen Podgor has lots of effective early commentary here at White Collar Crime Prof Blog.

Madoff gets sentenced to max of 150 years in federal prison!

Early reports from the MSM says Bernie Madoff gets the max from Judge Denny Chin, 150 years in federal prison, which was the most he could get for all the counts to which Madoff pled guilty.  Of course, with a possible 15% off for good behavior, Madoff could get out as early at 2138.

Here is early coverage from the Wall Street Journal:

Bernard Madoff was sentenced to 150 years in prison Monday, meaning he will likely spend the rest of his life behind bars after admitting in March to running one of the largest and longest financial frauds in recent memory.

At a packed hearing Monday, U.S. District Judge Denny Chin in Manhattan ordered Mr. Madoff, 71 years old, to serve the statutory maximum sentence in prison. Applause briefly broke out after the sentence was announced....

"Here the message must be sent that Mr. Madoff's crimes were extraordinary evil," Judge Chin said.

"This is really a fascinating term for Justices Scalia and Thomas"

The title of this post is a quote from Tom Goldstein's live-blogging at SCOTUSblog in reaction to the handing down of the final opinions of the 2009 Supreme Court Term.  I largely agree with this sentiment, though I have found everything these two do interesting since the Apprendi jurisprudence got going.  I would be interested in how regular readers of this blog respond to this comment.

UPDATE:  Here is how Tom unpacked his quote in these end-of-term reflections:

I think that the most interesting Justices, by far, were Justices Scalia and Thomas.  Both remain the most principled members of the Court.  They joined the defendant-favoring majorities in Gant in Melendez-Diaz, as they consistently have done in the recent lines of jury-right and confrontation cases. Justice Scalia joined the left to provide a majority in Cuomo and Spears.  Justice Thomas did the same in the maritime punitive damages case, Atlantic Sounding.  There is no counter-example in which a member of the left joined the Court’s four most conservative Justices to provide a majority.

Justice Thomas, in particular, remained willing to front new theories on critical questions, often writing only for himself, as in NAMUDNO.  No other member of the Court is so independent in his thinking.  The irony of course is that there remains a public perception, rooted in ignorance, that he is the handmaiden of other conservative Justices, particularly Justice Scalia.  I disagree profoundly with Justice Thomas’s views on many questions, but if you believe that Supreme Court decisionmaking should be a contest of ideas rather than power, so that the measure of a Justice’s greatness is his contribution of new and thoughtful perspectives that enlarge the debate, then Justice Thomas is now our greatest Justice.

SCOTUS takes up another honest-services fraud case

Though today's SCOTUS headlines will mostly be about the completion of the '09 Term, the Justices also granted cert on a bunch of new cases this morning. This order list reveals that one of the cases, Weyhrauch v. US, the Court specified the issue to be examined in this way:

The petition for a writ of certiorari is granted limited to the following question: Whether, to convict a state official for depriving the public of its right to the defendant's honest services through the non-disclosure of material information, in violation of the mail-fraud statute (18 U.S.C. §§1341 and 1346), the government must prove that the defendant violated a disclosure duty imposed by state law.

"Everything You Need to Know About the Madoff Sentencing"

This post at the WSJ Law Blog claims to provide a primer on everything one needs to know before the Madoff mania starts at 10am Monday morning.  But, if you want to know more, you might check out new pre-sentencing pieces from CNN Money and from the Financial Times and from Reuters and from lots of other media sources.  Also, if you are already thinking about Madoff's next home, this CNN article headlined "Prison survival tips for Madoff," explains why weekends at Bernie's are going to be much different after today's sentencing. 

Of course, as highlighted below, I have chronicled lots of the Madoff pre-sentencing stories in these prior posts:

• Any sentencing predictions or prognostications before Monday's Madoff mania?
• Feds seeking the max for Bernie Madoff
• Madoff asking for a 12-year prison sentence
• Why Bernie Madoff won't get a record white-collar sentence 
• "Will Madoff ever leave prison alive?"
• Running the federal sentencing guideline numbers for Bernie Madoff
• "Death penalty for white-collar criminals?"
• "Madoff's $lick Try"
• "Madoff Mercy: How long should the Ponzi schemer go to prison for?"
• White-collar fraud meets technocorrections for Bernie Madoff
• Notable criminal justice echoes of the Madoff mess
• FSR issue focused on white-collar sentencing

New York Times editorial about feeding prisoners

This morning's New York Times has this notable editorial, headlined "Two Meals and Not Always Square."  Here are excerpts:

With budgets tight, states and local governments have been looking at prisons — and prison food — as a place to save money.  Three days a week, Georgia now serves inmates only two meals. And across the country, there have been increasing reports of substandard food.  This is inhumane.  Adequate meals should be a nonnegotiable part of a civilized penal system.  It is also bad policy.  Researchers have found a connection between poor food quality and discipline problems and violence.

Georgia has nevertheless decided to save on staff costs by serving just two meals on Friday, as it already did on Saturday and Sunday.  The state says it gives prisoners the same number of calories on days when one meal is skipped.  Even if it does — and some prisoners’ advocates are skeptical — it can be oppressive to go so long without eating.

In Alabama earlier this year, a federal judge ordered the Morgan County sheriff locked up in his own jail for contempt for failing to adequately feed his inmates.  Alabama allows sheriffs to keep food money they do not spend, and the sheriff reportedly pocketed more than $200,000 over three years.

Prisoners’ rights advocates say they are receiving an increasing number of complaints from inmates nationwide who report being served spoiled or inedible food or inadequate portions....

If states and localities want to save money on corrections, they should reduce their prison and jail populations.  The United States, which has less than 5 percent of the world’s population, has almost one-quarter of its prisoners.  Many are in for nonviolent crimes that could be punished in more constructive, and less costly, ways.  If governments decide to put inmates behind bars, they have to give them adequate food — which means no less than three healthy meals a day.

Noting the latest state of the crack-powder sentencing debate

The Washington Post has this new article reviewing the latest developments in the never-ending debate over federal crack and powder sentencing terms.  The piece is headlined "Two Judges Target Cocaine Penalties: Disparity for Crack Crimes Criticized," and here is how it starts:

Federal judges are beginning to equalize punishment for crack and powder cocaine crimes, resulting in shorter prison terms for crack dealers and putting pressure on Congress to address a wide disparity in how the legal system handles cocaine-related offenses.

In two recent rulings and interviews, a federal judge in the District and one in Iowa said they had policy differences with Congress and a judicial commission that they said did not go far enough to change the guidelines for crack sentences in 2007.  From now on, the judges wrote, they will calculate sentences for crack offenders by using the more-lenient sentencing guidelines for powder cocaine crimes.

Recent Supreme Court rulings and supportive statements from top Justice Department officials paved the way for the judges' decisions.  Nonetheless, such unilateral action from the bench is unusual.  Legal scholars said the decisions highlight the judiciary's irritation at the slow pace of sentencing reform as Congress considers the first major revision of crack statutes in decades.

Regular readers with a good memory will know that the two rulings discussed in this article are Judge Mark Bennett's opinion in Gully (discussed here) and Judge Paul Friedman's opinion in Lewis (discussed here).

Should I care about being (mis?)quoted in a White House press release?

While doing a little weekend surfing, I stumbled across this press release appearing on whitehouse.gov from the Office of the Vice President (dated June 9), which seeks to champion Judge Sotomayor's criminal justice credentials.  The release seeks to marshall a bunch of evidence to support the assertion that "as a prosecutor and then on the federal bench, Judge Sotomayor has always been both fair and tough, and has followed the rule of law at every turn." 

Both the tone and substance of the press release reveals that, even in what is supposedly an new era of hope and change, the Obama Administration still thinks it is critically important to play up "tough-on-crime" talking points.  But what really caught my eye was how a quote of mine from an AP story is utilized to help make the case for Judge Sotomayor in this press release. 

Toward the very end of the press release, there is a final heading, "Experts and lawyers in the field have praised Judge Sotomayor’s approach to criminal law," and then five bullet-point quotes, including this entry: "Law Professor and Sentencing Expert Doug Berman has said: 'She certainly doesn't seem to have a pro-criminal bias and, if anything, because of her history, may have a pro-state bias.'"  On the one hand, I am intrigued and flattered that an official White House press release took note of what I had to say in this AP quote; on the other hand, as regular readers might surmise, I was not seeking through this AP quote to "praise Judge Sotomayor’s approach to criminal law."

I should note that I have added my name to a law professors letter expressing support for Judge Sotomayor's nomination to the Supreme Court.  Thus, I am not deeply troubled that my AP quote is being used in this way to help make the case for Judge Sotomayor.  But I still find the packaging a bit worrisome: apparently it is taken as a given by the White House that a possible "pro-state bias" is an approach to criminal law that merits praise.

Counting some of the economic costs of the death penalty in North Carolina

Thanks to this entry at the Death Penalty Information Center, I saw this interesting report in the Independent Weekly, which is headlined "The high cost of the death penalty: Nickel-and-dimed to death." Here are snippets from the piece:

[C]ourt fees related to capital trials, those in which prosecutors seek the death penalty for murder, cost North Carolina millions of dollars.  The costs are incurred even if the charges are reduced or dismissed.  Given the state's budget crisis, which has forced lawmakers to cut funding for education, social services and children's health insurance, money spent on pursuing death penalty cases arguably could be better used.  Nationwide, several states, including Colorado and Kansas, are considering abolishing the death penalty to save money....

Between 2001 and 2008, N.C. Indigent Defense Services cost the state an additional $36 million when prosecutors sought the death penalty instead of life imprisonment for 733 people, according to the Indy's analysis of a 2008 IDS report.  IDS is a publicly funded agency that provides private attorneys for defendants charged with capital crimes, but cannot afford a lawyer.

Several factors contribute to higher costs for death penalty cases: The state requires that capital defendants have two attorneys; there may be a greater need for expert testimony and a there is a separate sentencing phase.  "The attorneys have to treat their cases as serious capital cases, unless they're told it's not," says Thomas Maher, executive director of N.C Indigent Defense Services.  "The result is, a significant amount of money is spent on capital cases, although at the end of the day, district attorneys as a group only find a dozen in a year they even think are worthy of putting in front of a jury — and of that group, the majority don't get death."

Of the 733 defendants IDS represented who faced the death penalty, less than 3 percent — 20 — received death sentences....  Part of the reason for the extra expense in capital cases is that attorney and expert-witness fees begin accruing immediately — even if the charges are eventually dropped or reduced or the cases don't go to trial....

Earlier this month, after lobbying against the Racial Justice Act (see "District attorneys differ on Racial Justice Act," June 10), Wake County District Attorney Colon Willoughby told the Indy that analyzing the potential savings from limiting capital punishment represents a "fallacious way to make an evaluation." 

"I don't think that we ought to be trying to evaluate someone's life in terms of dollars," he said. "What we ought to be concerned about is whether it's right and sound."

Some recent related posts:

• "Opponents Focus On Cost In Death Penalty Debate"
• Great new (though still dated) examination of the death penalty and plea bargaining
• CNN now talking about the costs of the death penalty and state reforms 
• States considering laying off the death penalty during tough economic times
• The economic case against the death penalty getting more and more attention
• More discussion of cost concerns in debates over the death penalty
• Capital case cost concerns continue to inform reform debate
• Still more discussion of the costs of the death penalty
• What might 2009 have in store for . . . the death penalty in the US?

Problems with registration requirements for homeless sex offenders

Thanks to this post at How Appealing, I discovered that state court in Pennsylvania held in this opinion that, though "the Legislature could have drafted the Megan’s Law registration requirement to require a homeless and transient person to register ... it did not."  The opinion notes that other states have struggled with registration requirements as applied to homeless sex offenders, and concludes this way:

Because Wilgus’s homeless existence precluded the possibility of a residence, or fixed place of habitation or abode, we are constrained to hold Wilgus was without a “residence” to register, change or verify within the meaning of Pennsylvania’s Megan’s Law.  The Legislature may well consider amending the statute to address the status of homeless offenders within the registration requirements of Megan’s Law.