Sentencing Law and Policy

Might the Harris limit on Apprendi be at risk with O'Brien cert grant?

Professor Kevin Reitz sent me this tantalizing e-mail in response to te Supreme Court's cert grant today in O'Brien (basics here):

U.S. v. O’Brien gives the Court the chance to reconsider Harris v. U.S., 536 U.S. 545 (2002), which held that the Apprendi rule doesn’t attach to factfinding at sentencing that triggers a mandatory minimum sentence without increasing the available maximum penalty.  It would certainly be big news if the Court were to overrule Harris.  The Solicitor General’s office doesn’t expect this to happen (otherwise they wouldn’t have filed for cert).  Counting votes, however, it’s hard to call. 

Three dissenters in Harris remain on the Court: Stevens, Thomas, and Ginsburg.   Breyer’s concurring vote in Harris was wobbly — the rationale was that he could not “yet accept” the Apprendi rule.  If “yet” has now arrived, we may have four votes to overrule Harris.   Roberts, Alito, and Sotomayor are not clearly on record.  Sotomayor might well be a 5th vote?  

Stare decisis counts for something here.  Harris reaffirmed an earlier case against a fully-developed Apprendi challenge, so a 180-degree turn in O’Brien would be dramatic.  Still, from a policy view, once Apprendi and Blakely and Booker are the law, it would be nice to eliminate Harris’s mandatory minimum end-run around those cases.

Is the "culture of death" slowly dying at the Supreme Court?

As regular readers know, I have long complained about Supreme Court being caught up in what I called a “culture of death”: a tendency of the Court to devote, in my view, far too much of its scarce judicial time and energy to reviewing death penalty cases and adjudicating the claims of death row defendants.  I synthesized these complaints in an article published last year in Ohio Northern University Law Review based (on a lecture I gave at ONU) titled, "A Capital Waste of Time? Examining the Supreme Court's 'Culture of Death'," which is available at this link. In a coda to that piece, I noted that the Court had recently reduced the number of capital case cert grants, and I speculated that recent changes in personnel might be moving the Court away from its troublesome affinity for obsessing over capital cases.

I return to these issues upon noticing recent posts here and here at Crime & Consequences, in which Kent notes how many capital cases were before the Justices at their "long conference" and in which he subsequently notes that the Court did not have a single capital case in its long list of cert grants today.  More broadly, as detailed in the links on this DPIC page, the Supreme Court had a very light capital docket in the October 2008 Term and this Term so far is also shaping up to be free of any truly significant capital punishment cases (especially after the Court's Troy Davis dodge).

Though it is likely still too early to assert that the Court is  actively moving away from its previous obsession with capital cases, I am inclined to spotlight (and praise) the real possibility that Justices are coming to see that regular and repeated review of capital cases on the merits may do significantly more harm than good.

A mooooooving story of sensible judging in Moooooorestown

Thanks to blog posts here and here, I learned of a local story concerning a New Jersey sex offense case that calls out for comical commentary.   This New York Daily News piece, headlined "Judge dismisses animal cruelty charges against police officer Robert Melia for sex with cows," provides the details:

A New Jersey judge has dismissed animal cruelty charges against a cop accused of committing a sex act with young cows, saying a grand jury had no way of knowing whether the animals were "tormented."

Moorestown police officer Robert Melia, who is currently suspended, allegedly engaged in oral sex acts with five calves in Southampton in 2006.   Since New Jersey currently has no law explicitly banning such an act, prosecutors in Burlington county brought animal cruelty charges against Melia, the Philadelphia Daily News reports.

Judge Morely said it was questionable that Melia's acts, though "disgusting," constituted animal cruelty. "I'm not saying it's OK," Morely said.  "This is a legal question for me. It's not a questions of morals. It's not a question of hygiene.  It's not a question of how people should conduct themselves."

The dismissal reportedly irked the prosecution. "I think any reasonable juror could infer that a man's penis in the mouth of a calf is torment," a Burlington County assistant prosecutor, Kevin Morgan, said. "It's a crime against nature."

The judge's dismissal does not mark the end of Melia's legal woes.  He, along with girlfriend Heather Lewis, was arrested in April 2008 for sexually assaulting three girls over a five-year-period. Authorities investigating those charges reportedly uncovered videos on his computer of a girl being "subjected to sexual activity" in addition to taped encounters between Melia and the calves.

What is the best argument that Heller should only impact the feds? Will it get any votes?

How Appealing does an effective job here assembling the early major news coverage of the Supreme Court's decision to grant cert in McDonald v. Chicago, the case concerning whether the Second Amendment as interpreted in Heller is applicable as a limit on state and local gun regulations.  This is big news for lots of reasons, especially because it seem to me all but certain that the Supreme Court will declare Heller applicable to the states.

Indeed, as I have been thinking about this issue in the course of discussing it with student in my Second Amendment seminar, I have had a hard time developing a very strong argument that Heller should only apply to the feds.  Lower courts, understandably, decided against incorporation because they were bound by old precedent that the Second Amendment only applied to the states.  But a majority of Supreme Court can decide to (and seems likely to want to) overrule that precedent, and thus folks who want to limit Heller's reach will need to come up with other arguments.

The problem is, now that all important substantive constitutional rights are thought to constrain all levels of government, how can and should one develop an argument that Heller applies only to the feds.  Of course, proponents of gun control can make strong policy arguments that states and localities should be allowed to make their own distinct gun regulation choices, but are there any really good legal arguments that states and localities should not be subject to the same Second Amendment rules that limit the federal government?  And, moving to predictive mode, can anyone predict whether any Justice will embrace these arguments (as opposed to just contending that Heller was wrong and should not be extended).

Ninth Circuit judges talking about meaning and import of Paul reversal(s)

Federal sentencing fanatics know that the Paul case in the Ninth Circuit is significant because it was arguably the first (and might still be considered the only) circuit ruling that a within-guideline sentence should be reversed as substantively unreasonable.  The initial story of Paul is discussed in this 2007 post and a subsequent 2009 ruling after a remand for resentencing is discussed in this post. 

Now, as evidenced by this new order refusing en banc review, the Ninth Circuit has added an extra chapter to this story.  Specificaly, consider this opening paragaph from a dissent from the denial of rehearing en banc in Paul (which was joined by four other circuit judges):

This case decides whether a district court violated a mandate from the court of appeals.  It does not decide whether Paul’s sentence was substantively unreasonable, despite language in the opinion that could mislead readers.  I write separately in an attempt to forestall the confusion that has already arisen from the way in which the majority has chosen to draft its disposition.  I dissent for the narrow purpose of sending the criminal defense bar this message: do not cite this case for the proposition that Paul’s sentence was substantively unreasonable.

Split Ohio Supreme Court upholds criminal punishment for DUI arrestee refusing chemical test

As detailed in this official press release, this morning the Supreme Court of Ohio "upheld as constitutional a state law that imposes 10 additional days of mandatory jail time on a driver with a prior DUI conviction if that person refuses to take a chemical test after being arrested for a subsequent DUI violation."  The majority opinion in the 4-3 ruling in State v. Hoover, No. 2009-Ohio-4993 (Ohio Sept. 30, 2009) (available here), starts this way:

In this case, we consider the constitutionality of R.C. 4511.19(A)(2), which requires the imposition of criminal penalties upon certain persons who refuse to consent to chemical testing upon being arrested for operating a motor vehicle while under the influence of alcohol or a drug of abuse (“DUI”).  We hold that R.C. 4511.19(A)(2) does not violate the Fourth Amendment to the United States Constitution or Section 14, Article I of the Ohio Constitution.

The dissenting opinion starts this way:

The majority’s interpretation of R.C. 4511.19(A)(2) signals a fork in the road.  R.C. 4511.19(A)(2) veers from the traditional administrative punishment for refusal to consent to a chemical test upon an arrest for DUI and goes down a separate path, beyond the regulation of licensing; for certain DUI arrestees, R.C. 4511.19(A)(2) criminalizes the refusal to take a chemical test.  Since imposing a criminal penalty for refusing to consent infringes on a suspect’s rights under Section 14, Article I of the Ohio Constitution and the Fourth Amendment to the United States Constitution, I dissent.

SCOTUS cert grants: Guns, sex offenders, and sentencing factors ... oh my!

Reviewing (thanks to SCOTUSblog) the details of the ten cert grants announced by the Supreme Court this morning (basics here and here), I cannot help but feel a bit like a legal Dorothy heading through a jurisprudence thicket on the ways to learn what the Wizards of SCOTUS will have to say on some of the hottest legal topics for sentencing fans.  Specifically, these there grants as described at SCOTUSblog are huge news for anyone involved in modern sentencing law and policy issues:

Docket: 08-1301
Title: Carr v. United States
Issue: Whether a person may be criminally prosecuted under 18 U.S.C. § 2250for failure to register when the defendant’s underlying offense and travel in interstate commerce both predated the Sex Offender Registration and Notification Act’s enactment ; whether the Ex Post Facto Clause precludes prosecution under § 2250(a) of a person whose underlying offense and travel in interstate commerce both predated SORNA’s enactment.

Docket: 08-1521
Title: McDonald, et al.  v. City of Chicago
Issue: Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.

Docket: 08-1569
Title: United States v. O’Brien and Burgess
Issue:Whether the mandatory minimum sentence enhancement under 18 U.S.C. § 924(c)(1) to a 30-year minimum when the firearm is a machinegun is an element of the offense that must be charged and proved to a jury beyond a reasonable doubt, or instead a sentencing factor that may be found by a judge by the preponderance of the evidence.

Of course, the Second Amendment incorporation issue is the biggest story with the biggest potential jurisprudential impact.  But I think the outcome of that case is almost a given, as I would be shocked to see the Justices decide Heller only applies to the federal government.  The other cases seem more in play, and how the Justices approach and decide these cases could make them both sleepers for sentencing fans to watch closely.

I will have a lot more to say about both Carr and McDonald in subsequent posts, and I am already looking forward to the discussions and debate both cases are likely to generate in the months ahead.

New report on juve LWOP in Massachusetts

One of the many reasons I am always eager for the Supreme Court to take up more (non-capital) sentencing cases is because simply the decision to grant cert will often inspire public policy groups and the general public to notice and debate important (non-capital) criminal justice issues that are too often overlooked.  This reality in on full display in the wake of the Supreme Court's decision to examine juvenile LWOP sentences in Graham and Sullivan: I have noticed a huge uptick in the number of  studies and press reports on life sentences for juveniles in recent months. 

The latest example comes from Massachusetts, as detailed in this Boston Globe article and this press release from the Children Law Center of Massachusetts.  Here is the start of the Globe article:

Despite its liberal reputation, Massachusetts has one of the harshest laws in the country for sentencing murderers as young as 14 to life in prison without parole, and many of the 57 people serving such mandatory sentences are first-time offenders, according to an advocacy group that wants them to become eligible for parole.

The Children’s Law Center of Massachusetts, in what it said was the first comprehensive study of the 1996 law that resulted in such sentences for first-degree murder, found that a disproportionate percentage of the children locked up for the rest of their lives are black. Many of the offenders were convicted with adult codefendants, some of whom got milder sentences and have been freed.

The report [which is available at this link] followed a two-year review of most of the cases in which children ages 14, 15, and 16 were tried in adult court and sentenced to life. The study says that penalties for juvenile murderers were inadequate in the 1980s but that the Legislature went too far when it passed the current law in response to what the center describes as overblown fears of young super predators.

The group wants Governor Deval Patrick and the Legislature to change the law to at least make juveniles convicted of first-degree murder eligible for parole after 15 years, as is true for people convicted of second-degree murder. “Life-without-parole sentences may be an appropriate response to some adult crimes, especially in a state like Massachusetts that does not impose the death penalty,’’ the 33-page report said. “But the current law treats youths as young as 14 exactly like adults, regardless of their age, past conduct, level of participation in the crime, personal background, and potential for rehabilitation.’’

Other recent posts on juve LWOP and the Graham and Sullivan cases:

• SCOTUS grants cert in Sullivan, juve LWOP case
• The (unpreserved?) procedural issues in Graham juve LWOP case
• Analyzing the cert grants in both Graham and Sullivan
• "A Life Term for Rape at 13: Cruel and Unusual?"
• NYTimes coverage of very young lifers
• Does Roper suggest young juve LWOP is unconstitutional?
• Juves serving life terms
• The next issue in sentencing of juveniles?
• New HRW report assailing juve LWOP in California
• LDF report documents disparities in juve LWOP in Mississippi
• House hearing on bill to eliminate juve LWOP sentences
• Gearing up for the SCOTUS juve LWOP cases on the horizon
• New Heritage Foundation report defending juve LWOP sentences
• An early preview of Graham and Sullivan, the SCOTUS juve LWOP cases

A timely note on the constitutional questions surrounding the Adam Walsh Act

I just came across this timely new Note on SSRN, titled "Federalism Challenges to the Adam Walsh Act," that is forthcoming in the Boston University Law Review. Here is the abstract:

This Note addresses two provisions of the Adam Walsh Act that have been challenged as violating principles of federalism: 18 U.S.C. § 4248, which provides for federal civil commitment of sexually violent predators, and 18 U.S.C. § 2250(a)(2)(A), which creates a new federal “failure to register” crime for federal sex offenders.  Part I provides background information on the Adam Walsh Act and these two provisions.  Part II examines the possible sources of constitutional authority for these provisions, the Commerce Clause and the Necessary and Proper Clause.  This Part explains that these two clauses provide the basis for most of the federal criminal law, and describes how they might be invoked to justify the Adam Walsh Act provisions at issue.  Part III argues that neither provision is justified independently by the Commerce Clause.  Finally, Part IV argues that neither provision is justified as a law necessary and proper for carrying into execution Congress’s power to enact federal criminal laws.  This is the chief rationale that the government has relied on in cases challenging the constitutionality of the civil commitment provision. Interestingly, the government has argued that the civil commitment provision is a law necessary and proper for carrying into execution Congress’s power to criminalize both federal offenders’ past federal crimes and possible future federal crimes.  This Note argues that neither provision is a law necessary and proper for carrying into execution the federal government’s power to prosecute, punish, or imprison individuals for past federal offenses.  Furthermore, neither provision is a law necessary and proper for carrying into execution the federal government’s power to prevent future federal crimes. Because the provisions at issue exceed Congress’s constitutional authority, they are invalid and must be struck down.  The Note concludes by suggesting how the provisions might be revised to pass constitutional muster.

Astute readers may know that the constitutionality of the civil commitment provisions of the AWA is before the Supreme Court this term in the Comstock case.  And the registration provision's constitutionality, which is now kicking around in circuit courts, will surely be influenced by whatever SCOTUS ends up doing in Comstock.

ABA hosting second annual "Sentencing Advocacy, Practice & Reform Institute"

I just received this notice of a great sentencing event taking place in DC in early November:

The ABA Criminal Justice Section, in cooperation with our co-sponsors, is proud to present a one-day seminar to address a broad array of sentencing and reentry issues, with a particular emphasis on sentencing practice in white-collar cases.  The conference will examine sentencing and reentry trends and opportunities for reform at both the federal and state levels.

The program will begin with a plenary session on the state of the sentencing union including rates of incarceration, sentencing trends, racial disparity, alternatives to incarceration, and recent federal legislation.  There will be two tracks of instruction focused on reentry and two focused on sentencing, each addressing issues of concern to different segments of the criminal justice community, including probation and parole officials, white collar crime defense attorneys, prosecutors, academics, public defenders, judges, sentencing consultants, mitigation specialists, corrections personnel, victim advocates and policy experts.  One track will focus on practice and procedure issues of particular concern to criminal defense attorneys in general and white collar practitioners in particular.

Confirmed speakers include Jeremy Travis, President of the John Jay College of Criminal Justice, and the U. S. Sentencing Commission.  The second annual conference is hoped to again attract a broad cross-section of those involved in perhaps the most pressing criminal justice issues of our time.

Click on this link here for complete brochure.

Schools embrace sex-offender scanners despite costs of this form of technocorrections

This article from today's Philadelphia Inquirer reports on the hottest new school accessory this fall:

The three mothers waiting to meet with the principal looked harmless enough, but before they were allowed into the Spring-Ford district school, they had to undergo a computerized background check. The women gave their driver's licenses to a secretary, who scanned them against a national sex-offender database....

So far, parents like it, administrators say, proof that after a decade marked by the Columbine massacres, the 9/11 attacks and high-profile child sex crimes, nothing may be "too much" when it comes to child security, regardless of the cost or intrusiveness.

"I never want to be the superintendent who has to tell a parent something happened to their kid," Spring-Ford superintendent Marsha Hurda said during a demonstration of the system, installed in 13 school buildings this year at a cost of about $1,500 each.

Raptor Technologies Inc., the Houston company that makes the system, said it's been installed in 6,000 schools nationwide since it was created seven years ago as a visitor-management system for Enron Corp. In addition to flagging sex offenders, the system manages the flow of visitors and keeps track of their whereabouts. It also alerts staff to parents who are involved in custody disputes or subject to restraining orders.

Visitors who clear the sex-offender registry are sent on their way and told to check out when they leave. But if there's a match, school administrators, and sometimes police, are notified. If there's a legitimate reason for the visit, such as a teacher conference, the visitor is allowed in with an escort. Participating in other school functions, such as volunteering in class or chaperoning a field trip, is generally not allowed.

"Even if you are a parent and are on one of these Megan's Law lists, you are not allowed to come in and freely visit our buildings," said Methacton School District superintendent Terry Quinn. Or, as Julie Mullin, a Spring-Ford Area School District board member and mother of seventh-grade twins, said, "I don't want them reading to my kid."

Interest in the scanners, and a half-dozen others from other companies, comes amid a growing national debate over whether the ever-swelling lists of registered sex offenders - 674,000 by the last estimate - are really that helpful or simply provide a false sense of security. The company says its software identified 1,700 convicted sex offenders at schools last year.

Civil libertarians note that from 80 to 90 percent of people who victimize children are someone the children already know, such as a parent, family friend or coach. "It certainly can be helpful," Kristen Anderson, a spokeswoman for the National Center for Missing and Exploited Children, said of the technology, "but it's no substitute for good common-sense protocols and parenting."

Lauren Taylor, executive director of the Pennsylvania Sexual Offenders' Assessment Board, said the idea that a molester would wander into a school to harm a child is "a very unlikely scenario." It's more important to thoroughly vet those who come in close contact with children, such as teachers, health-care workers, and janitorial staff. "I'm not sure the bang for the buck is there," she said of the security devices.

Fundraiser Hsu gets 24-year (within-guideline?) federal sentence for ponzi scheming

The high-profile, white-collar sentencing of the day is described in this Wall Street Journal article headlined "Campaign Fund-Raiser Hsu Sentenced to 24 Years in Prison." Here are the basics:

A federal judge on Tuesday sentenced former Democratic fund-raiser Norman Hsu to more than 24 years in prison for illegally funneling tens of thousands of dollars to U.S. political candidates and for his role in a Ponzi scheme.

The sentence of 292 months in prison, handed down in a U.S. District Court in Manhattan by Judge Victor Marrero, was less than the 30 years that the prosecution had requested.

Before Judge Marrero announced the sentence, Mr. Hsu quietly told him: "I know apologizing will not make things better for anyone, but I would still like to apologize to your Honor, and to everyone else." Federal prosecutors said the apology was meaningless, arguing that Mr. Hsu wasn't as cooperative as he could have been.

Mr. Hsu's attorney, Alan Seidler, said his client wasn't surprised by the sentence. Mr. Seidler says his client intends to appeal, as Mr. Hsu disputes the amount of money lost to investors on which the sentence was calculated. Prosecutors have said that investors, collectively, lost at least $20 million.

Mr. Hsu was convicted in May of illegally funneling tens of thousands of dollars to U.S. political candidates. Also in May, he pleaded guilty to charges related to a Ponzi scheme that prosecutors said raised at least $60 million and swindled investors out of at least $20 million.

This description of the sentencing leads me to suspect that Hsu received a within-guideline sentence and that he will be appealing on a guideline-related loss calculation issue.

Seeking First Amendment and feminist perspectives on an escort's sentence

This new federal sentencing story out of California, which is headlined "Stanford Law School grad turned call girl sentenced to home detention," has so many interesting and comment-worthy dimensions.  First, the basics:

A Stanford Law School graduate was sentenced Monday on a federal tax conviction related to running a high-priced call girl service, punishment that includes restrictions on her ability to keep advertising as an escort while she's on probation.

During a hearing in San Jose federal court, U.S. District Judge James Ware concluded he needed to impose those restrictions on Cristina Warthen after federal prosecutors disclosed she's continued to advertise herself on the Internet as a high-priced escort, even as she awaited sentencing on federal tax evasion charges related to her days as an upscale prostitute named "Brazil."

Warthen gained notoriety when she was busted as a jet-setting call girl who sold her services to pay off her Stanford Law School debts.  She got her law degree from Stanford in May 2001, but quickly began to run a steamy Web site with offers to jet off for liaisons with clients in cities around the country, including New York, Chicago and Washington, D.C. She eventually pleaded guilty to failing to pay taxes on more than $133,000 she earned as a prostitute in 2003.

Under a plea deal with the government, Warthen was sentenced Monday to one year of home detention with an electronic monitoring device and three years of probation.  She also has to pay the government a total of about $243,000, less than the original $313,000 set out in her original plea arrangement.

Federal prosecutors agreed to the lower amount when Warthen demonstrated she could not pay it after her recent divorce from David Warthen, the co-founder of the online search engine Ask Jeeves, now known as Ask.com.  Court papers show the once-wealthy Web entrepreneur's finances were decimated by last year's stock market collapse, and he could not provide more money to his now-ex-wife, who says she's unemployed.

But Ware was dismayed to learn from federal prosecutors and probation officials that Warthen has continued to advertise her escort services as she has awaited sentencing. Assistant U.S. Attorney David Callaway told the judge Warthen has posted ads on the Internet offering "companionship" for $2,000 a night. "We all know that's a wink and nod and what she really is advertising is high end prostitution," Callaway said in court.

Warthen, who has been temporarily living in Seattle with her mother, has placed an escort ad on the Web. The image of her face is blurred in photographs on the Web ad, which boasts of a graduate degree from an "Ivy League university." Brian Getz, Warthen's attorney, objected to the government's request, saying she is a "law abiding citizen" who has a free speech right to advertise escort services as long as she's not breaking prostitution laws.  But Ware, noting that her sentence is already "lenient," was unmoved.

Now, a few First Amendment and feminist musings.  Because I am not a First Amendment scholar, I am not even sure of the basic doctrines that surround government prohibitions on forms of advertising/speech that might a form of illegal solicitation.  But I wonder if this kind of prohibition on internet advertising of guns or viagra would have been imposed on a male defendant who pleaded guilty to evading taxes for prior illegal sales of guns or prescription drugs.

Important new NACDL report critical of modern drug court movement

As detailed in this news release, the National Association of Criminal Defense Lawyers has today released an important new report on drug courts.  The title of the press release. "Drug Courts Endanger Rights, Block Access To Needed Treatment for Drug Users: Defense Lawyers Call for Major Overhaul," highlights that the NACDL is not in favor of extant drug court models.  Here is the start of the press release, which provides a partial summary of the report:

Drug courts – first created 20 years ago as an emergency response to an epidemic of drug-related criminal cases that clogged courts and prisons – have in many places become an obstacle to making cost-efficient drug abuse therapy available to addicts and reducing criminal case loads, the nation’s largest association of criminal defense attorneys said today.

In too many places, access to treatment comes at the cost of a guilty plea for low-level drug offenses while hard cases are denied and offenders wind up in jail at great expense to taxpayers, a report by the National Association of Criminal Defense Lawyers found. The report flowed out of a two-year task force study of problem-solving courts.

Well-intended prosecutors and judges, generally with little input from the defense bar, often limit entry to treatment to offenders most likely to solve their own problems while insisting that “harder cases” go to jail, at considerable taxpayer expense, the study found. Minorities, immigrants and those with few financial resources are often under-represented in drug court programs.

The full report, which is titled "“America’s Problem-Solving Courts: The Criminal Costs of Treatment and the Case for Reform,” is available at this link.  This report strikes me as quite an important development in the drug court movement, and thus it is today's must-read for any and everyone who has tended to view drug courts and other problem-solving courts as a positive development and part of a healthy evolution away from unduly punitive tough-on-crime approaches.

This report also seems especially timely in light of President Obama's and Attorney General Holder's apparent affinity for drug courts (as noted in prior posts here and here and here).  Indeed, as evidence by many links below, there have been very few loud voices speaking up against modern drug courts until this new report by NACDL.

Some related posts about drug court programs and research:

• New report on drug courts from The Sentencing Project
• NJ commission endorsing expanding drug courts
• A religious pitch for drug courts
• Terrific NIJ drug court report
• Reexamining drug courts
• Judge Lay advocating drug courts again
• A Mississippi pitch for drug courts and getting smarter on crime and punishment
• Resources on drug courts

"Roman Polanski Rep Says Justice Has Already Been Served"

The title of this post is the headline of this new ABC News piece concerning a famous old child sex case that has become new again thanks to the famously neutral Swiss.  Here is how this piece starts:

As director Roman Polanski remains in a Swiss jail and the debate about his arrest rages on, his Hollywood representative says attorneys are preparing a motion for his release. "The entire narrative surrounding this situation over the last 32 years has been wrought with complications and inconsistencies," Jeff Berg told "Good Morning America" today.

Polanski's arrest Saturday at the Zurich airport came at the request of a U.S. warrant on a 31-year-old statutory rape charge. Berg and Polanski's lawyers have expressed shock that he was taken into custody in a country he is known to frequent, even owning a chalet there. And Berg called the timing of the arrest, which occurred the same day Polanski was to have received an award at the Zurich Film Festival, "one of many cruel ironies" that Polanski has faced in his life.

Polanski's critics have seemed incredulous that Hollywood heavyweights like producer Harvey Weinstein are pleading for the freedom of a man convicted of intercourse with a 13-year-old girl, but Berg said he and Polanski's lawyers believe justice has already been served.

Polanski took a deal and pleaded guilty to one count of unlawful sexual intercourse and served 42 days in a California jail where he was psychologically evaluated. He has admitted he had sex with 13-year-old Samantha Geimer in 1977 after plying her with champagne and Quaaludes at the home of actor Jack Nicholson. "Roman was incarcerated. Roman did time in a state prison," Berg said. "My feeling to his critics is you have to look at a much more complex situation surrounding this case."

Now in her 40s, Geimer has said she forgives Polanski and doesn't think he should face further jail time.

Berg said Polanski fled the country in 1978 only after learning during a discussion with the district attorney outside a Los Angeles courtroom that the judge in his case was preparing to sentence him to a long prison term despite the plea deal. Polanski's rights were violated, Berg said, and the case was "plagued with prosecutorial and judicial misconduct."

Because of how old and opaque this case is, my feelings are both mixed and muted concerning what is going on now.  But I have an inkling that at least a few readers may have strong opinions, which all are welcome to share in the comments.

Notable empirical examination of truth-in-sentencing laws in operation

I just noticed on SSRN this article by two European economists titled "Responses to More Severe Punishment in the Courtroom: Evidence from Truth-in-Sentencing Laws." Here is the abstract:

We investigate behavioral responses of agents in the criminal process to more severe punishments by analyzing the effects of Truth-in-Sentencing (TIS) laws in a large sample of individual criminal cases.  The TIS laws raised the effective punishment by requiring offenders to serve at least 85% of their sentence in prison. Differences between the U.S. states in the timing of adoption and the types of crimes covered provide a source of identification.  The TIS laws increased the likelihood that the defendant would be acquitted or the case would be dismissed. The prosecutors responded by offering less advantageous concessions in plea bargaining -- they became less likely to reduce the charges and the defendants in turn became less likely to plead guilty.  The expected sentence for an arrested offender declined by more than 10% through a combination of changes in the probability of conviction and the sentence imposed upon conviction.  The potential deterrent effect of the TIS laws was therefore partially mitigated by the behavioral responses.

Ohio Supreme Court asked to stay next scheduled execution in wake of botched attempt

As detailed in this AP article, the Ohio death row inmate who is scheduled to be executed (for the first time) next week has today "asked the Ohio Supreme Court to delay his upcoming execution in light of problems with the state's last scheduled lethal injection."  Here are the basics:

Attorneys for Lawrence Reynolds fileda motion with the state's highest court Monday, days after a similar filing with a federal appeals court.

Reynolds' execution scheduled for Oct. 8 would be the first since the state's unsuccessful attempt at putting Romell Broom to death on Sept. 15....

Reynolds' lawyers argue that Ohio's lethal injection system should be investigated before he goes to the death chamber.

UPDATE:  This local coverage, headlined "Freeze on lethal injections sought: Courts are asked for a moratorium after IV problems," starts this way:

The ghosts of problem executions past combined with an aborted attempt two weeks ago are haunting state prison officials as death-penalty foes argue that Ohio's lethal injections should be halted, at least temporarily.

"Homeless Georgia Sex Offenders Directed to Woods"

The title of this post is the headline of this ABCNews report that provides the latest example of some of the real-world consequences of sex offender residency restrictions.  Here is how the piece begins:

A small group of homeless sex offenders have set up camp in a densely wooded area behind a suburban Atlanta office park, directed there by probation officers who say it's a place of last resort for those with nowhere else to go.

Nine sex offenders live in tents surrounding a makeshift fire pit in the trees behind a towering "no trespassing" sign, waiting out their probation sentences as they face numerous living restrictions under one of the nation's toughest sex offender policies.  "It's kind of like a mind-game, it's like 'Survivor,'" said William Hawkins, a 34-year-old who said he was directed to the campsite two weeks ago after being released from prison for violating probation by failing to register as a sex offender in Georgia.

The muddy camp on the outskirts of prosperous Cobb County is an unintended consequence of Georgia law, which bans the state's 16,000 sex offenders from living, working or loitering within 1,000 feet of schools, churches, parks and other spots where children gather.

It's not the only place in Cobb County where offenders can live — there are hundreds of other sex offenders throughout the county living in compliance with the law.  But Ahmed Holt, manager of the state's sex offender administration unit, calls the camp a "last resort" for homeless offenders who can't find another place to live that complies with the law.

He said probation officers direct them to the outpost if other options fail, such as transferring to another county or state or sending them to a relative's place that meets the requirements. Homeless shelters and halfway houses are often not an option, he said, because of the restrictions that bar them from being near children.

Some recent related posts:

• Miami sex offender residency restriction upheld by state court
• Alabama litigation over whether and how homeless sex offenders have to register
• "DOC May Have To Pay For Sex Offenders To Stay In Motels"
• Lots of interesting sex offender residency news and notes
• The Economist assails US sex offender laws

NY Times editorial assails "High Cost of Death Row"

Today's New York Times has this editorial contending that the high costs of the death penalty ought to lead cash-strapped states to move away from capital punishment.  Here are excerpts from a piece headlined "High Cost of Death Row":

To the many excellent reasons to abolish the death penalty — it’s immoral, does not deter murder and affects minorities disproportionately — we can add one more.  It’s an economic drain on governments with already badly depleted budgets.

It is far from a national trend, but some legislators have begun to have second thoughts about the high cost of death row. Others would do well to consider evidence gathered by the Death Penalty Information Center, a research organization that opposes capital punishment....

According to the organization, keeping inmates on death row in Florida costs taxpayers $51 million a year more than holding them for life without parole.  North Carolina has put 43 people to death since 1976 at $2.16 million per execution.  The eventual cost to taxpayers in Maryland for pursuing capital cases between 1978 and 1999 is estimated to be $186 million for five executions.

Perhaps the most extreme example is California, whose death row costs taxpayers $114 million a year beyond the cost of imprisoning convicts for life.  The state has executed 13 people since 1976 for a total of about $250 million per execution.  This is a state whose prisons are filled to bursting (unconstitutionally so, the courts say) and whose government has imposed doomsday-level cuts to social services, health care, schools and parks.

Money spent on death rows could be spent on police officers, courts, public defenders, legal service agencies and prison cells....

In contrast to some other abolitionist arguments, I am generally drawn to claims that modern capital punishments systems do not produce benefits that justify their economic costs.  But the suggestion that money "spent on death rows" could or should be spent on more "prison cells" reinforces my nagging concern (developed in this Harvard Law & Policy Review article) that the anti-death argument of most abolitionists have a tendency to cotribute to modern mass incarceration.

Some recent related posts on the costs of capital punsihment:

• Georgia struggles to pay for a costly capital system
• The challenging economics of death causing problems in Chicago
• 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
• "Opponents Focus On Cost In Death Penalty Debate"
• What might 2009 have in store for . . . the death penalty in the US?

An early preview of Graham and Sullivan, the SCOTUS juve LWOP cases

Writing in today's Los Angeles Times, David Savage has this preview of the two big Eighth Amendment cases to be heard this fall by the Supreme Court. The piece is headlined "Supreme Court to consider juvenile 'lifers': Does life without parole for minors who didn't kill constitute cruel and unusual punishment?". Here are excerpts:

According to Amnesty International, "The United States is the only country in the world that does not comply with the norm against imposing life-without-parole sentences on juveniles."

Nearly all of the estimated 2,500 U.S. prisoners serving life terms for juvenile crimes, the group said, were guilty either of murder or of participating in a crime that led to a homicide. But 109 inmates are serving life sentences for other crimes committed when they were younger than 18.

Sullivan's and Graham's lawyers do not claim the young men deserve to go free. "We are not asking for Mr. Graham to be released any time soon," attorney Bryan Gowdy said. "We are asking the court to declare unconstitutional a sentence of life without parole for these crimes. It would be entirely different if Mr. Graham had a meaningful opportunity for parole."

The question will be an early test of whether Justice Sonia Sotomayor, a former prosecutor, will align herself with the court's tough-on-crime conservatives or join with its liberals to strike down prison policies perceived as going too far.

Sullivan’s and Graham’s cases will be heard in November. Many lawyers and prosecutors said that until the Supreme Court agreed this year to take up the issue, they were unaware of juveniles receiving such sentences....

Florida leads the nation in sending teenagers to prison for life with no possible parole for crimes such as burglary, assault or rape. It has at least 77 such inmates. California and six other states also have at least one. "This is a hidden group. They don't get a lot of attention because there was no homicide," said Paolo Annino, a law professor at Florida State University who has compiled national data on these prisoners.

California officials said they were unaware of having four such inmates until they checked their database at Annino's request. Two years ago, California joined many other states in prohibiting the sentencing of young offenders to life in prison. But that measure did not affect inmates who had already been sentenced.

Annino and others point to two trends in the 1980s that led to juveniles serving life terms. First was the national move to abolish parole, reflecting fears that violent criminals could not be safely released. Second was the increased prosecution of young criminals as adults.

In defense of its life-in-prison policy, Florida's lawyers have pointed to several deadly attacks on European visitors carried out by young criminals. These violent incidents were "threatening the state's bedrock tourism industry," Florida's lawyers said in the opening paragraph of their brief to the Supreme Court in the Graham case.

Other recent posts on juve LWOP and the Graham and Sullivan cases:

• SCOTUS grants cert in Sullivan, juve LWOP case
• The (unpreserved?) procedural issues in Graham juve LWOP case
• Analyzing the cert grants in both Graham and Sullivan
• "A Life Term for Rape at 13: Cruel and Unusual?"
• NYTimes coverage of very young lifers
• Does Roper suggest young juve LWOP is unconstitutional?
• Juves serving life terms
• The next issue in sentencing of juveniles?
• New HRW report assailing juve LWOP in California
• LDF report documents disparities in juve LWOP in Mississippi
• House hearing on bill to eliminate juve LWOP sentences
• Gearing up for the SCOTUS juve LWOP cases on the horizon
• New Heritage Foundation report defending juve LWOP sentences