Sentencing Law and Policy

The Heinz sentencing year: 2009 all about anticipation...

For my last post of 2009, I will recap the year in sentencing by showing my age and referencing the classic Heinz ketchup ads with the Carly Simon song "Anticipation."  Specifically, my basic take on 2009 as a year in sentencing is that nothing all that dramatic, dynamic or consequential happened, but a lot of potentially dramatic, dynamic or consequential events have been teed up for 2010.  

For example, the Supreme Court has granted cert and/or heard argument on an array of very significant sentencing cases on issues ranging from the constitutionality of juve LWOP to the reach and application of Blakely and Booker, ranging from the effect of defense lawyer’s wrong advice on the collateral consequences of a guilty plea to various challenges to various new federal sex offender laws.  But there really was not a major landmark SCOTUS sentencing ruling in 2009, so we all await the fireworks from the Justices in 2010.

Similarly, Congress was full of talk of sentencing reform.  Senator Jim Webb rolled out a bill for creating a special commission to study mass incarceration and related sentencing issues in a comprehensive fashion, and other federal bills addressed in more limited ways a various important crime and punishment topics.  And yet, none of these bills seemed to get particularly close to passage despite a political environment that would seem to present a special opportunity for legislative reforms.  Still, the stage seems set for some movement on some legislative fronts, perhaps starting with the crack/powder disparity, in 2010.

Likewise, both the US Sentencing Commission and the US Department of Justice were engaged in a long-term review and reassessment of modern federal sentencing realities.  Neither institutional player rolled out any major reform proposal in 2009, but it seems possible (and perhaps likely) that both will move forward in some new (and perhaps bold) new directions in 2010. 

In the arena of the death penalty, the biggest 2009 development might have been the slight uptick in the number of execution and Ohio's successful adoption of a new one-drug lethal injection protocol.  But it won't be until 2010 that we get to see if Ohio's path-breaking will lead a march by other states on a new execution path.

Regular readers may recall my series of posts at the start of 2009 wondering what might the year have in store for: executive clemency and the federal judiciary and its criminal caseload and the death penalty in the US and punishment theory and incarceration rates and Second Amendment jurisprudence and sex offender law and policy and drug sentencing law and policy and the US Sentencing Commission.  As suggested above, I think the answer has been "not much."  But I think a whole lot may be in store for 2010.  And, assuming health and happiness in the year ahead, I hope and expect to cover all the action in this space.

Happy 2010 to everyone!

"Judges Consider New Factor at Sentencing: Military Service"

The title of this post is the headline of this new article in today's Wall Street Journal.  Here are excerpts from the effective piece:

A small but growing number of judges say U.S. military veterans should be treated differently from nonveterans when they are sentenced for crimes.

As more soldiers return home from combat overseas and end up in the criminal-justice system, a number of state and federal judges are deciding to show former soldiers leniency in light of their service.  Some veterans are receiving probation coupled with psychological treatment, generally for nonviolent crimes that normally would land them in prison.

That is raising concern among some legal experts, who say singling out veterans for special treatment indulges criminal behavior and risks establishing a two-tier system of justice.

Many veterans returning from war zones develop behavioral and psychological problems, which in some cases leads to alcohol and drug abuse -- and crimes. "We dump all kinds of money to get soldiers over there and train them to kill, but we don't do anything to reintegrate them into our society," says John L. Kane, a federal judge in Denver.  Earlier this month, Mr. Kane sentenced an Iraq war veteran convicted of bribery to probation instead of prison.

Most U.S. courts don't have rules on giving veterans special consideration.... But in North Carolina, if a defendant was honorably discharged from the military, judges must use that fact as a mitigating factor at sentencing. And in several states, including Tennessee and Louisiana, courts have ruled that judges are allowed to use prior military service to lessen a sentence.

There are no special courts for veterans in the federal court system....  But momentum for special treatment is growing. Since last year, about 16 counties and cities -- from California's Orange County, to three cities in western New York, have started veterans courts, according to the National Association of Drug Court Professionals.  Three counties in and around New York City launched similar programs in July, and state legislatures have approved the formation of such courts in places such as Harris County in Texas and the state of Nevada.

The goal of the courts, which serve veterans of any era, is to keep defendants out of prison. Veterans are put into treatment programs for war-related illnesses, among other problems, that aren't available in the prison system.  Their probation includes rigorous drug testing.  After veterans complete treatment, some prosecutors' offices drop the criminal charges as long as the veterans didn't have a prior felony conviction....

Some legal experts worry the movement could result in special consideration for all veterans, regardless of whether their criminal conduct was influenced by their military service.  "What we think goes over the line is the creation of two separate systems based solely on somebody's status," says Allen Lichtenstein, the general counsel for the American Civil Liberties Union in Nevada.  "Police are under particular stress -- should there be a court for them?"...

Taking military service into account at sentencing isn't a new tradition.  In the Civil War era, members of the military were routinely shown leniency by judges, notes Carissa Hessick, a law professor at Arizona State University.  During the World War II and Vietnam eras, certain judges allowed criminal charges to be dropped if defendants enlisted in the armed forces.  That practice is no longer allowed.

Sympathy for new veterans aided John Brownfield of Cañon City, Colo.  The former U.S. Air Force firefighter pleaded guilty to accepting a bribe as a public official for illegally selling tobacco to federal prison inmates while working as a correctional officer in 2007, two years after he returned from tours in Iraq and Afghanistan.

The federal prosecutor and Mr. Brownfield's lawyer agreed to recommend to the judge that he serve a year in prison.  But the judge, Mr. Kane of Denver, instead ordered a psychiatric evaluation and earlier this month sentenced Mr. Brownfield to five years of probation.

In the Brownfield case, Judge Kane wrote a lengthy opinion explain his sentencing decision.  The Brownfield opinion can be accessed at this link, and it starts this way:

I have written this sentencing memorandum, which is more extensive than most such findings and conclusions, because this case involves issues the Sentencing Guidelines do not address regarding the criminal justice system’s treatment of returning veterans who have served in Afghanistan and Iraq.  As I conclude that the Sentencing Guidelines’ advice is not persuasive in the circumstances of this case, I will make specific findings necessary to achieve the purposes of 18 U.S.C. § 3553 (2006).  This memorandum opinion will be published and copies provided to the United States Sentencing Commission pursuant to the implicit suggestion in Rita v. United States, 551 U.S. 338, 357-58 (2007).

Some recent related posts:

• "Judge suggests more sentencing options for war veterans"
• Can downloading of child porn be blamed on post-traumatic stress disorder?
• Prior military service as a sentencing mitigator gets a big boost from SCOTUS
• Should prior military service reduce a sentence?

Federal district judge enjoins part of new Nebraska sex offender law

As detailed in this local article, Sentencing Hall of Famer Judge Richard Kopf has issued a notable preliminary ruling concerning Nebraska's new sex offender law.  Here are the basics:

A federal judge has blocked portions of Nebraska's new sex offender registry law, but is allowing the bulk of it to take effect, as scheduled, Friday. In a ruling issued Wednesday, Judge Richard Kopf said lawmakers have mostly done what Congress wanted in revising the law.

Kopf is restricting enforcement of a provision that prohibits sex offenders from using social networking sites used by children. Affected as well is a requirement that sex offenders agree to searches of their computers. Convicted sex offenders who've completed their sentences and aren't on parole, probation or court-ordered supervision won't be subject to those two provisions.

The full ruling by Judge Kopf can be downlaoded below, and here is how it gets starts:

Plaintiffs attack amendments to Nebraska’s Sex Offender Registration Act that become effective January 1, 2010. With exceptions noted below, I decide that a preliminary injunction is unwarranted. By and large, Nebraska has only done what Congress (and the Attorney General of the United States pursuant to a delegation from Congress) permitted or required.

The exceptions: In the interim, Nebraska will not be allowed to enforce the following statutes against persons who have been convicted of sex offenses but who have completed their criminal sentences and who are not on probation, parole, or court-ordered supervision, to wit:

(1) Neb. Rev. Stat. § 29-4006(2) (West, Operative January 1, 2010) (requiring consent to search and installation of monitoring hardware and software) and

(2) Neb. Rev. Stat. § 28-322.05 (West, Operative January 1, 2010) (making it a crime to use Internet social networking sites accessible by minors by a person required to register under the Sex Offender Registration Act).

Download Kopf ruling on Nebraska sex offender law

UBS whistleblower complaining that he is only person headed to prison

Reuters has this interesting new article previewing what sounds like an interesting upcoming segment of 60 Minutes.  The piece is headlined "UBS whistleblower asks why he is going to prison," and here are excerpts:

The key informant in the U.S. tax fraud case against Swiss bank UBS AG says he does not deserve the federal prison term he is due to start serving next month, according to an interview to be broadcast on Sunday.

Bradley Birkenfeld, a 44-year-old U.S. citizen, has been hailed by whistleblower advocates and U.S. prosecutors alike as pivotal to the case against UBS, his former employer. The bank was targeted in a wide probe by U.S. authorities for helping U.S. tax cheats to hide assets in UBS accounts.

Speaking in an interview to be broadcast on CBS television's "60 Minutes" on Sunday, his first since he began providing insider information to U.S. prosecutors in the summer of 2007, Birkenfeld seems both angered and stunned by the fact that he is due to enter prison on January 8 for a 40-month term.

Birkenfeld was handed his sentence by a Florida district court judge in August, two days after U.S. and Swiss authorities signed a pact in which Switzerland agreed to reveal the names of about 4,450 wealthy American clients of UBS to U.S. tax investigators.

No other UBS bankers have been jailed in connection with the massive tax fraud case.  Birkenfeld's former boss, a Swiss citizen and an alleged mastermind of the conspiracy, was detained in the United States in 2008 and held for four months on a material witness warrant before he was quietly allowed to leave the country.  "I gave them the biggest tax fraud case in the world," Birkenfeld says in the interview, portions of which were released by CBS on Wednesday.  "I exposed 19,000 international criminals and I'm going to jail for that?" he asks.

Birkenfeld pleaded guilty to a single fraud conspiracy count in June 2008, when he acknowledged helping his largest U.S. client hide assets from the Internal Revenue Service.  In a claim disputed by Birkenfeld's lawyers in a December 7 letter to U.S. Attorney General Eric Holder, Justice Department officials say the jail time was justified because he was not initially forthcoming about the tax fraud committed by his billionaire U.S. client Igor Olenicoff.

In the "60 Minutes" interview, Birkenfeld, who says he was sometimes asked to "cater" to his U.S. clients by shopping for things like cars, chalets or expensive Swiss watches on their behalf, was reminded by journalist Steve Kroft that he was an enabler for people breaking the law. "And I am the only one going to prison. Out of 19,000 accounts and no Swiss bankers," Birkenfeld responds.

"Nothing Mellow About Dissent in Medical Pot Case"

The title of this post is the headline of this notable article from law.com, which reports on this interesting state appellate ruling from California dealing with an interesting issue about conditions of probation.  Here are the details:

In an unusually contentious ruling Monday, California appellate court Judges Paul Haerle and J. Anthony Kline got in each other's faces about whether a judge can order a criminal defendant to stop using medicinal marijuana while on probation when the underlying crime has nothing to do with pot use. Kline says you can't. Haerle says you can, and -- unfortunately for Kline -- Haerle was backed in the 2-1 ruling by Justice James Richman.

The opinion focused on Daryl Moret Jr., who pleaded no contest to possession of a concealed firearm on the condition he abstain from using marijuana, which he claimed a doctor had recommended for chronic migraine headaches.

Solano County Superior Court Judge Peter Foor insisted on the condition because he had doubts that Moret needed pot for medicinal reasons and felt the substance could only lead the 19-year-old -- who had also embezzled $2,000 from a former employer and said he found the stolen gun in some bushes -- to further crimes.  Moret's other choice? Jail.

"After balancing all these considerations, the trial court determined that it would help in 'basically straightening things out' and 'being a productive member of the community' that he abstain from using marijuana while on probation," Haerle wrote. "Thus, the trial court clearly and properly exercised its discretion."

An irked Kline responded by saying the majority opinion "flies in the face of the law," "subordinates the will of the people" and is "legally untenable."

"This court's [ruling]," he wrote, "permits imposition of conditions of probation that are unrelated to the crime of which the defendant was convicted, forbids conduct that is not criminal and requires conduct that has no relationship to the defendant's future criminality. No modern California court has ever done such a thing, which is precedent shattering."

Second Circuit finds prosecutor's sentencing advocacy does not justify a plea withdrawal

The Second Circuit today has an interesing little discussion of pleas and sentencing advocacy in US v. MacPherson, No. 08-1829 (2d Cir. Dec. 30, 2009) (available here). Here is how the ruling starts:

This criminal appeal challenges a sentence for a narcotics violation on the ground that the Government violated the plea agreement by recommending a sentence higher than the range estimated to be applicable at the time of the plea.  The appeal also challenges the reasonableness of the sentence, which included 262 months’ imprisonment.  Carlos MacPherson appeals from the April 15, 2008, judgment of the District Court for the Eastern District of New York (Dora L. Irizarry, District Judge).  Applying plain error review to the challenge to the plea agreement, see Puckett v. United States, 129 S. Ct. 1423, 1428-33 (2009), we conclude that, if any error occurred with respect to the plea agreement, it was not plain error, and that the sentence survives review for reasonableness.  We therefore affirm.

Sixth Circuit rejects Second Amendment challenge to federal criminal prohibition of possessing machine guns

The Sixth Circuit issued a little panel opinion today in Hamblen v. United States, No. 09-5025 (6th Cir. Dec. 30, 2009) (available here), in which the panel summarily rejects a defendant's Second Amendment challenge to his machine gun possession convictions. Here is how the brief opinion starts:

Petitioner Richard Hamblen appeals the district court’s denial of his 28 U.S.C. § 2255 motion to vacate, claiming that his convictions for possession of machine guns, in violation of 18 U.S.C. § 922(o), and possession of unregistered firearms, in violation of 26 U.S.C. § 5861(d), are unconstitutional.  Because the Second Amendment does not confer an unrestricted individual right to keep and bear machine guns, we affirm the district court’s judgment and deny Hamblen’s petition for relief.

This case seems notable not only because it is one of the few post-Heller rulings I have seen dealing with machine guns, but also because the defendant appears to have personally manufactured his machine guns in order to be able to better serve as a member of the Tennessee State Guard (which sounds like a modern version of a "well regulated militia").  But these facts are deemed inconsequential by the Sixth Circuit panel:

We note, as a preliminary matter, that Hamblen’s possession of nine unregistered machine guns was not only outside the scope of his duties as a member of the State Guard, but also directly violated State Guard policy.  Therefore, this case does not present a novel issue of law regarding the Second Amendment’s prefatory clause.

Might pot prohibition come to an end in the next decade?

This postby Jonathan Adler at Volokh, which is headlined "A Marijuana Tipping Point?", prompts the question in the title of this post. That post notes this recent AP article discussing increased state-level efforts to decriminalize marijuana possession and use.  Here is a snippet from the AP piece:

Washington is one of four states where measures to legalize and regulate marijuana have been introduced, and about two dozen other states are considering bills ranging from medical marijuana to decriminalizing possession of small amounts of the herb.

"In terms of state legislatures, this is far and away the most active year that we've ever seen," said Ethan Nadelmann, executive director of the New York-based Drug Policy Alliance, which supports reforming marijuana laws.

Nadelmann said that while legalization efforts are not likely to get much traction in state capitals anytime soon, the fact that there is such an increase of activity "is elevating the level of public discourse on this issue and legitimizing it."...

Opponents of relaxing marijuana laws aren't happy with any conversation on the topic, other than keeping the drug illegal. "There's no upside to it in any manner other than for those people who want to smoke pot," said Travis Kuykendall, head of the West Texas High Intensity Drug-Trafficking Area office in El Paso, Texas. "There's nothing for society in it, there's nothing good for the country in it, there's nothing for the good of the economy in it."

Legalization bills were introduced in California and Massachusetts earlier this year, and this month, New Hampshire and Washington state prefiled bills in advance of their legislative sessions that begin in January. Marijuana is illegal under federal law, but guidelines have been loosened on federal prosecution of medical marijuana under the Obama administration.

Even so, marijuana reform legislation remains a tough sell in some places. In the South, for example, only Mississippi and North Carolina have decriminalization laws on the books.  "It's a social and cultural thing," said Bruce Mirken, spokesman for the Marijuana Policy Project, a Washington, D.C.-based marijuana advocacy group.

Responding to this piece, Adler makes a fine point about two factors that should make those who favor legalized marijuana hopeful about the long-term prospects of the demise of pot prohibition:

First, the polling data I’ve seen suggests younger voters are much less supportive of marijuana prohibition than older voters. Insofar as this represents a generational difference, this would suggest that opposition to marijuana prohibition would rise over time.  Second, as the story notes, many states are in dire need of new revenue sources.  This could make the legalization, and taxation, of marijuana more attractive to politicians.

So, dear readers, I encourage you all to look into your crystal balls and make a prediction about whether come 2019 we will be talking about the the "Teens" as a decade in which high times became legal.

Some recent related posts:

• "Marijuana Nation: The New War Over Weed"
• NPR coverage of medical marijuana in California
• Republican governor signals openness to legalizing marijuana
• "America Should Decriminalize Drugs":
• Talk of drug courts, but not major policy changes, in drug war from Obama team
• Thoughtful academic thoughts on ending marijuana prohibitions
• "Time For Marijuana Legalization?"
• Terrific commentary and assessment of the war on drugs
• Renewing a lawyerly pitch for ending drug prohibition
• More calls for an end to the drug war and legalization of marijuana
• New poll has majority saying alcohol is more dangerous than marijuana
• "U.S. Support for Legalizing Marijuana Reaches New High"

Seventh Circuit requires "some minimal explanation" for sentencing modification ruling

The Seventh Circuit has issued a notable little opinion today in US v. Marion, No. 09-2525 (7th Cir. Dec. 29, 2009) (available here), concerning a district court's obligations when ruling on a federal defendant's motion for a sentence reduction under 3852(c)(2). Here is the heart of the ruling:

Although ruling on a motion to reduce is not the same as imposing a sentence, we think that the reasoning behind requiring a brief statement of reasons at sentencing compels a similar requirement when deciding a motion to reduce. Some statement of the district court’s reasoning is necessary for this court to be able to meaningfully review its decision....

We think that a district court’s order on a motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) should at least address briefly any significant events that may have occurred since the original sentencing. If the district court believes that nothing particularly noteworthy has changed concerning the basis for the defendant’s original sentence, some simple explanation to that effect will apprise both the defendant and this court of that fact.

Our opinion in this case should not be read to expand what is required of a district court when sentencing a defendant or considering a motion to reduce a sentence under § 3582(c)(2). We have no intention of counting words or applying some rigid formulation to statements of reasons, particularly on a motion to reduce a sentence.  The problem with the order here is not that the district court used a form order, or even that the order contained only a one-sentence explanation. The problem arises from the fact that it is impossible for us to ensure that the district court did not abuse its discretion if the order shows only that the district court exercised its discretion rather than showing how it exercised that discretion.  Some minimal explanation is required.

Is repeat offender Charlie Sheen potentially facing a long prison sentence?

This article from the Los Angeles Times, which is headlined "Charlie Sheen's 1996 domestic violence incident in L.A. could become factor in new case," should prompt fans of "Two and a Half Men" to worry about the fate of the show's star.  Here are the details: 

Charlie Sheen’s previous domestic violence case more than a decade ago in Los Angeles could become a factor if Colorado prosecutors file charges against the actor over an alleged assault in Aspen last week.

Katie Buckland, executive director of the Women’s Law Center who has handled domestic violence cases for the L.A. city attorney’s office in the past, said the earlier instance of domestic abuse could be critical during both a trial and a sentencing if Sheen is convicted. “A second offense is always treated more seriously,” she said....

Sheen was arrested Christmas Day on suspicion of second-degree assault, menacing and criminal mischief and released on $8,500 bond, according to Aspen police. In a 911 recording released Monday, a tearful woman who identified herself as Sheen’s wife said her husband had threatened her with a switchblade-type knife. She feared she was “going to die,” the woman said.

Sheen, who stars in the CBS comedy “Two and a Half Men,” pleaded no contest to a misdemeanor charge of battery with serious bodily injury for a 1996 incident involving his then-girlfriend, Brittany Ashland.

He was accused of knocking her to the floor, leaving her bloodied and briefly unconscious. He was sentenced to two years' probation with a suspended one-year jail term and 300 hours of community service. At his sentencing, he told a judge: “I feel this is very fair, and I’m grateful.... You will not see me back in this courtroom.”

Thanks to the folks at TMZ, everyone can read this affidavit supporting Sheen's arrest.  Of course, charges have to be formally filled against Carlos Irwin Estvez (aka Charlie Sheen) before sentencing particulars become central to Sheen's case.  But I would like to hear in the comments from anyone familiar with Colorado sentencing concerning just how long a prison sentence Sheen could be potentially facing if the worst allegations against him are true.

China creates international row by executing Brit for drug offense

As detailed in this Wall Street Journal article, which is headlined "China Ignores Appeals, Executes Briton," the death penalty is making some interesting international news these days.  Here are the details:

China executed a British national for drug smuggling, sparking outrage from British leaders, who had appealed for clemency on mental-health grounds, and threatening to strain relations between the countries.

Akmal Shaikh, convicted of carrying more than four kilograms of heroin two years ago at Urumqi Diwopu International Airport in northwestern Xinjiang province, was executed by lethal injection on Tuesday after China's Supreme People's Court upheld his death sentence, China's state-run Xinhua News Agency reported....

British Prime Minister Gordon Brown condemned the execution, saying in a statement that he is "appalled and disappointed that our persistent requests for clemency have not been granted." He expressed his "sincere condolences" to Mr. Shaikh's family and friends. "I am particularly concerned that no mental-health assessment was undertaken," he added.

Chinese Foreign Ministry spokeswoman Jiang Yu dismissed the British complaints. At a regular news briefing she said the Chinese government is "strongly dissatisfied and is absolutely opposed to the unjustifiable condemnations" from the U.K. "We urge the British side to show respect to China's judicial supremacy and redress the mistake immediately to avoid damaging bilateral relations," Ms. Jiang said....

Xinhua quoted a statement issued by the Supreme People's Court as saying that that there was insufficient proof that Mr. Shaikh had any mental-health issues and that the evidence against him was "certain and the facts were clear." Mr. Shaikh's rights were fully granted, the court said, adding that drug crimes are serious criminal offenses with "severe negative social impact," according to the Xinhua report.

According to Chinese criminal law, people trafficking more than 50 grams of heroin can be punished by death. Reprieve, a London-based prisoner-advocacy group that lobbied for Mr. Shaikh, said he is the first European to be executed in China in 58 years.

First Circuit debates applicability of child porn trafficking sentence enhancement

Today's opinion from the First Circuit in US v. Dyer, No. 08-1343 (1st Cir. Dec. 28, 2009) (available here), confirms not only that some federal courts are working this week, but also that downloading child porn in the wrong way can make one liable at sentencing for trafficking in child porn.  Here is the heart of the majority's ruling concerning the application of a federal guideline sentencing enhancement:

Dyer chose to download and frequently use LimeWire, a type of peer-to-peer software that creates a shared system of users, and he did so to acquire images of child pornography for his personal collection.  He downloaded these files into a "shared" folder that he knew would be made available to others.  He did so for two years and gave no indication to Agents Lechner and Pritchard that he would have stopped had he not been arrested.  He knew how to turn off the "sharing" feature of LimeWire and prevent other users from accessing these features, but he did not, at any point, make an effort to do so.  By his actions, Dyer took deliberate steps to become part of a virtual community of consumers of child pornography who shared images to enlarge their own collections.  Our holding that these acts showed an "intent to traffic" [and thereby supports a specific guideline sentencing enhancement] likewise comports with the holdings of other circuits on similar fact patterns.

A dissenting opinion in Dyer makes much of a distinction between general intent and specific intent to argue that the defendant in this case should not be subject to a trafficking sentencing enhancement.  And both the majority and dissenting opinions make for interesting reading.

New lows for murders and the crime rate in New York City

Police and prosecutors and lots of others must be doing something right when it comes to criminal justice policy in the Big Apple because, as detailed in this AP report, new figures released today "show overall crime in the nation's largest city is down 11 percent from last year and 35 percent since 2001."  This New York Times piece, headlined "New York on Track for Fewest Murders on Record," discusses in more detail the significant new drop in murder rates in NYC:

The storyline of murder in New York is one that has been undergoing constant revision since the Police Department began tracking homicides in 1962. There have been rises — the homicide rate peaked in 1990 at 2,245 — and subsequent falls. But since such statistics have been compiled and examined, there has never been as few murders in New York as there have been this year.

The city is on track, for the second time in three years, to have the fewest number of homicides in a 12-month period since 1962. As of Dec. 27, there were 461 murders; the current record low happened in 2007, when there were 496.

The murder tally has gone down despite a bad economy and predictions that crime might have hit bottom — a notion rejected by the city’s police commissioner, Raymond W. Kelly.  But challenges persist: With the city facing a $4.1 billion budget deficit, the police force — which has seen its head count reduced by 6,000 officers since 2001 — may have to shrink further....

[O]ne thing has not changed: guns are still the deadliest of weapons.  Most of this year’s victims, or 283 of them, were killed with a gun fired by someone they knew.  Other methods of murder included being stabbed (90 victims), hit with a blunt instrument (28 victims) or asphyxiated (16 victims).  One victim was murdered with a car.

Curbing gun use is linked to lowering the murder rate, and Mr. Kelly credited the mayor’s effort to stop illegal guns from flowing into New York, saying 90 percent of crime guns confiscated in the city come from out of state.  He also cited the department’s program of stopping people on the streets to question and sometimes frisk them as a “life-saving” strategy that has led to 7,000 weapons seized this year, including 800 guns.  “We have a policy of engagement, and I think it’s working,” Mr. Kelly said.  “We believe young people, who may have a gun, think twice before they take it out on the street.”

The commissioner said the city’s current success can also be traced to eight years of programs like Operation Impact, which attacks stubborn crime plateaus, and the Real Time Crime Center, which feeds detectives instant intelligence.  “We always modify, hone and adjust our strategies,” Mr. Kelly said.  “We are getting better and better at it.”...

Killers and those killed are overwhelmingly male and most in both categories are between 18 and 40, the police said.

There are a number of notable sentencing stories regarding New York state and New York City that bear consideration as these encouraging crime data contemplated.  First, New York state in recent years has been reducing its overall prison population and its incarceration rate.  Second, the two federal districts that impose among the greatest number of below-guideline sentences are based on Manhattan and Brooklyn.  Of course, based on these data, I would not make a bold claim that there is a direct causal link between more lenient sentencing outcomes and reduced crime.  But I do think these NYC realities help refute the notion that crime reductions can only be achieved by more severe sentencing outcomes.

New Duke study claims $11 million in yearly savings if NC eliminated death penalty

This effective local article, which is headlined "Study: End death cases, save money," reports on a new study coming out of Duke University claiming that North Carolina could save millions by eliminating the death penalty. Here are some of the details:

If the state stopped trying to execute killers, it would free up $11 million a year, according to a study by a Duke University economist published this month.

There is little return on the dollars spent on seeking the death penalty, says Philip Cook, an economist at Duke's Sanford School of Public Policy. Of the 1,034 people charged with murder in North Carolina in 2005 and 2006, prosecutors initially sought the death penalty against about a quarter of them. Only 11, though, were sentenced to death for their crimes. "The idea that the state could spend so much money on someone they think is completely undeserving is very interesting," Cook said. "I have to believe that there are some people that would find this cost issue irritating."

Cook's study was published this month in American Law and Economics Review. Cook's last study on the cost of the death penalty in North Carolina was published in 1993. In that study, he estimated an annual savings of $4 million if the death penalty were not an option.

Cook's findings will be presented to lawmakers, and opponents of the death penalty will likely use them to argue that it isn't cost-effective.... Cook argues that the rarity of death sentences undermines the deterrent factor. By his math, the odds of a killer getting the death penalty are less than 1 percent.

Rep. Paul Stam, a Wake County Republican, said criminals don't calculate odds and aren't swayed by them. "Criminals pay more attention to TV and newspaper headlines than to statistics," said Stam, a proponent of the death penalty. "Maybe that is why many of them get caught."

Here and across the country, the death penalty is on the decline. No one has been lethally injected in North Carolina since August 2006, and the 163 inmates now on death row face an uncertain end.

Cook's $11 million figure is a net savings. He assumed everyone currently on death row would be imprisoned for all of their living days, and also factored the estimated costs of appealing convictions of life in prison. Cook did not, however, include savings by prosecutors being spared additional preparation and court time of a capital trial.

It's unclear what bearing, if any, a cost analysis of the punishment will have on its future. "Whenever it comes to reducing or changing punishments, there's a lot of politics and public opinion involved," said Rep. Deborah Ross, a Wake County Democrat. "It's never, ever a dollar-and-cents issue."

At least two states, New Jersey and New Mexico, have abolished the death penalty in recent years, citing cost as a primary reason. Maryland, too, has considered eliminating the death penalty; officials there have significantly limited the number of murders that can be prosecuted capitally in hopes of reducing costs.

Capital trials cost five times more than first-degree murder trials in which the death penalty is not pursued. A trial averages $116,400 in costs for the defendant, Cook found, compared with $18,600 for a non-capital murder trial. Trials also hijack a prosecutor's office for weeks, a cost that's hard to estimate because it involves salaries for people who handle other matters besides capital murder trials. The average capital trial lasts nearly three weeks, compared to a week for murder trials without the death penalty....

Prosecutors often argue that the option of pursuing the death penalty is a bargaining chip that allows them to secure a plea to the lesser punishment of life in prison without setting foot in a courtroom. Cook found, however, that it was cheaper to try a case in which prosecutors never sought the death penalty than to negotiate a capital case and avoid going to trial. That is due in part to a North Carolina law requiring defendants facing the death penalty to have at least two attorneys.

Some recent related posts on the costs of capital punsihment:

• "Budget kills Hinds capital cases: DA says Hinds can't afford death-penalty prosecutions"
• New DPIC report assails costs (and opportunity costs) of death penalty administration
• NY Times editorial assails "High Cost of Death Row"
• 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?

A thoughtful defense of the SCOTUS docket status quo

Thanks to this postat Concurring Opinions, I saw that Judge J. Harvie Wilkinson III has a great new essay assailing arguments that assail the current docket and case selection process of the Supreme Court. This piece, which is titled "If It Ain’t Broke . . ." and is available here at 119 YLJ ONLINE 67, gets started this way:

“The most important thing we do,” Justice Brandeis once remarked, “is not doing.”  Alexander Bickel showed long ago how the Supreme Court’s discretionary certiorari jurisdiction was the lynchpin of those “passive virtues” that are essential to principled government.  Indeed, the cautious exercise of the certiorari jurisdiction may be as important to judicial self-restraint as the Court’s decisions on the merits.  We should therefore view skeptically any attempt to alter the Supreme Court’s case selection process.  Although critics in recent years have lodged various complaints about the Court’s docket, the solutions being urged upon us will neither cure the alleged ills nor avoid significant collateral damage.  The reformers make two basic assertions: first, that the Supreme Court should decide more cases, and second, that the mechanism by which the Supreme Court selects cases for review should be changed.  Both are wrong.

This piece is a must-read for anyone intrigued by debates over the Supreme Court's docket (a topic I have explored with respect to the death penalty).  Though I do not agree with everything Judge Wilkinson says, I agree with most of what he says.  Of particular importance is his emphasis on possible unintended and harmful consequences from a dramatic modification of the SCOTUS case selection process.

As I have noted in a few posts in recent months, the addition of two new Justices with professional histories as prosecutors seems to have helped the Court appreciate the importance of taking more consequential and interesting criminal cases.  Thus, while I was troubled by the SCOTUS docket a few years ago, I am now a real fan of the SCOTUS docket status quo.  Still, ever the fickle commentator, I might change my tune again if sentencing cases do not remain a regular feature of the Court's docket.

The same old debates about a new federal sentencing bill

A helpful reader forwarded to me this effective local newspaper article reporting on two "classic" sentencing perspectives concerning a new federal sentencing bill.  The piece is headlined "Gang-prevention bill hits a snag with a co-sponsor's criticism," and here are excerpts:

U.S. Rep. Bobby Scott's two-year effort to refocus the battle against juvenile and gang crime to prevention programs that would cost billions of dollars appears to be picking up steam. More than half the members of the U.S. House — 234 lawmakers — have signed on as co-sponsors of his bill.

The Newport News Democrat's legislation would spend $2 billion over five years to underwrite what he calls "evidence-based prevention programs" to reach high-risk youths before they turn to gangs and crime.

But U.S. Rep. Randy Forbes, who had signed on as a co-sponsor, is now raising a red flag, saying the bill won't work.  The Chesapeake Republican, who has tried for years to get a tougher anti-gang sentencing bill passed, said he became a co-sponsor in June in the hopes of getting his proposals included in Scott's bill.

Scott, however, said calls for tougher sentencing do not address the continuing cycle of gang crime. "You can say things as often as you want.  The research is absolutely clear....  Mandatory minimums are a waste of taxpayer money," said Scott, who contends that the public wants the attention shifted to prevention.  "They're sick and tired of watching people shout simple-minded slogans and pass it off as crime policy."

Scott's Youth PROMISE Act — an acronym for "Prison Reduction through Opportunity, Mentoring, Intervention, Support and Education" — involves steering federal grants to local agencies or groups that can demonstrate they use proven methods to prevent young people from joining gangs or turning to crime.  The legislation also would provide millions to local police for victim- and witness-assistance programs in neighborhoods or cities with gang problems.

Scott said that despite considerable research and examples of successful community prevention programs, government funding mostly has focused on capturing criminals.  If young people can be steered away from crime, the financial savings to policing and the justice system will more than pay for the prevention programs, he said....

Forbes said he doesn't oppose crime prevention programs but doubts that the Youth PROMISE Act will weed out wasteful and ineffective spending.  "I guarantee you that with Bobby's bill, every group in America is going to say it's a prevention program," Forbes said.  "You're going to have hundreds of groups line up... because for most of those groups, this is about dollars."...

Earlier this month, the bill was approved, 17-14, by the House Judiciary Committee, with Forbes joining other Republican committee members to vote against it.  The vote came after the committee rejected Forbes' attempt to add his gang-sentencing plan to the legislation.

Forbes has argued that tougher sentencing laws are needed for gang members — including the younger members.  He proposed a so-called "gangbusters" bill that would make gang-related crimes of murder, violent assaults and kidnapping all federal crimes that could require sentences up to life in prison or, for murder, execution.

Forbes' bill would allow the prosecution of 16- and 17-year-old gang members as adults in federal court.  The measure passed the House in 2005 but failed in the Senate.  He has reintroduced it since then, but it has not progressed to another floor vote.

Tackling prevention by itself would bring nothing but frustration, Forbes said, whereas requiring harsh sentences for younger gang members would force them to turn on their older leaders, undermining the criminal operation.  "If you do not go after 16-, 17-year-old kids, what happens is the gang network will continue to let them do the dirty work," Forbes said.  "We're talking about hardened criminals who are killing people for no reasons at all.  I'm not saying we don't need prevention money.  What I'm saying is what this will do is miss the meanest of the mean and the toughest of the tough.... It will also put all our resources in one direction."

"Md. girl's death sharpens criticism of sex offender laws"

The title of this post is the headline of this new local article reporting on the unsurprising response to the latest brutal high-profile crime by a registered sex offender in Maryland.  Here are excerpts:

Not even a full day after police found the body of an 11-year-old girl who was kidnapped, authorities say, by a registered sex offender, the Salisbury tragedy was spotlighted by Maryland activists who consider the state's child protection laws inadequate.

Jerry Norton, who heads Citizens for Jessica's Law in Maryland, a group that for years has fought to fortify laws against pedophiles, was calling lawmakers Saturday, underscoring his position....

Police said the girl had been taken from her bedroom Tuesday night by a registered sex offender, Thomas James Leggs Jr., who has been held since Wednesday in the abduction. Leggs briefly dated the girl's aunt, who had custody of her and her two siblings....

Leggs, 30, is listed in the Maryland registry because of a third-degree sex offense conviction in 1998. In Delaware, he is listed as a "high-risk" sex offender in connection with the rape of a minor in 2001.

Norton is flabbergasted that a man who raped a minor could be free so soon and associating with children. "What . . . is he doing back out on the street, and what is he doing having contact with this child?" he said. "I think the problem is with these guys going through a revolving door."

State Sen. Nancy Jacobs (R-Harford) co-sponsored Maryland's version of Jessica's Law, a bill passed in 2006 that set sentencing guidelines for child sex offenders. It's named for Jessica Lunsford, a 9-year-old Florida girl who was kidnapped, sexually abused and killed by a convicted child sex offender.

At the urging of activists such as Norton, Jacobs and other legislators have tried unsuccessfully to tighten the law to prevent offenders from getting parole. She thought Sarah's case would "absolutely" inspire legislators to reinforce the law. "I've already had e-mails from people asking about it," Jacobs said. "It's about how far can we go, and I'm in favor as going as far as we can."

Jacobs also said the case exposes weaknesses in how Maryland communicates with other states about child sex offenders. If Leggs was considered "high risk" in Delaware, she thinks he should have been in Maryland, too.

Del. Mike D. Smigiel Sr. (R-Cecil), who, heading into the 2010 legislative session, has pre-filed three bills that would tighten child sex offender laws, said he has been "seething" over the Salisbury case.

He's considering such options as civil incarceration, cracking down on plea bargains and allowing wiretapping of suspected child sex offenders. "We have very strict laws in Maryland, but I think more has to be done," he said. "These child predators are incorrigible. We have to find ways to deal with this threat to our community."

"Smart Answers to Recidivism"

The title of this post is the headline of this notable New York Times editorial.  Here are excerpts:

Faced with soaring prison costs, states are finally focusing on policies that would help former prisoners stay out of jail after they are released. Some legislatures are reshaping laws that land parolees back inside for technical violations that should be dealt with on the outside. More than a dozen cities and counties have taken steps that make it easier for qualified ex-offenders to land government jobs, except in education and law enforcement and other sensitive areas from which people with convictions are normally barred by law.

Still, the nation as a whole needs to do much more about laws that marginalize former offenders — and often drive them back to jail — by denying them voting rights, parental rights, drivers licenses and access to public housing, welfare and food stamps, even in cases where they have led blameless lives after prison.

New Jersey — a state with a terrible record of marginalizing former prisoners — could lead the way. Before the State Legislature in Trenton is a comprehensive package of reforms that would help ex-offenders rejoin society’s mainstream and lower the chances, and costs, of recidivism.

New Jersey lawmakers heard some depressing testimony in hearings leading up to the legislation. Deterred by barriers to jobs, housing and education, about two-thirds of the people released from prison in New Jersey end up back inside within three years. Since taxpayers spend about $48,000 per prison inmate per year, by some estimates, the state could reap significant savings from even a small decline in the return-to-prison rate....

The New Jersey Legislature has a chance to provide a new lease on life to thousands of families while offering a model for the rest of the nation.

Rough first holiday season for Bernie Madoff in prison

This ABC News report permits an extra little bit of Bernie Madoff schadenfreude this holiday season:

Bernie Madoff fell out of bed and suffered facial injuries, according to ABC affiliate WTVD in North Carolina.  The affiliate had initially reported that the convicted Ponzi schemer had facial fractures, broken ribs and a collapsed lung consistent with an assault, but is now reporting he experienced heavy facial bleeding from the fall.  Duke University Medical Center said Madoff had been treated there, according to the Associated Press.

Bernie Madoff attorney Ira Sorkin told ABC News that Madoff was admitted to the hospital with dizziness and high blood pressure.

Obama as Scrooge: no Christmas clemency grants

As I complained in posts here and here and here around Thanksgiving, it was sad and telling that President Barack Obama's first use of his historic clemency power was to continue the modern (silly?) tradition of pardoning a turkey.  At that time, however, I was hoping that Prez Obama might be saving up some holiday clemencies for the Christmas season.  But now the Obamas have gone off to Hawaii on their vacation; as this official webpage reveals, Prez Obama has left behind on Christmas Eve nearly 3,500 requests for pardons and commutations sitting unresolved on his Oval Office desk.

In this new Huffington Post commentary, which is titled "What I Want For Christmas: Mass Clemency," Jacob Appel makes a fulsome pitch for all executive branch leaders to consider the granting of mass clemency this holiday season.  Here are some highlights:

[W]ith the United States now boasting the highest incarceration rate in the world -- more than 1 in every 100 Americans in currently behind bars -- our nation is long overdue for a mass clemency of non-violent felons and those unlikely to re-offend.  Such a collective pardon and commutation would reunite hundreds of thousands of families, save billions of dollars in incarceration costs, and might foster a national spirit of forgiveness and reconciliation....

So here's my Christmas wish: Each chief executive should order a special panel to determine, as quickly as possible, which prisoners either have a history of extreme violence or pose a high risk of re-offending.  Those meeting neither criteria should be transitioned home as quickly as possible....

One of the glaring -- yet too often overlooked -- failings of contemporary America is that we have become a nation obsessed with justice and retribution.  We claim to be The Land of the Free, yet we have lost sight of what it means to be imprisoned: denied liberty and access to one's family, subjected to isolation and violence and unspeakable boredom.  We have come to believe, in the most pernicious way, that people should get what they deserve.  What a sea change it might be in our public discourse and our civic life if we focused instead upon mercy and forgiveness.  A merciful and forgiving culture might find itself with less anger, less social disruption, and even less crime.  If we liberated only half of our prisoners, we could spend the billions of dollars saved educating children, or providing substance-abuse treatment to addicts, or training mental health workers -- breaking the cycle of neglect that sets future prisoners on their initial trajectory toward misconduct....

Fortunately, the majority of our more than two million prisoners are not fanatics and sociopaths. Many are good people who have exercised poor judgment.  They have the same hopes and dreams as ordinary, free Americans, but they now squander their lives behind bars because our prison-industrial complex has gone haywire.  They are, in short, the meek and wretched who the Biblical Jesus -- whether literal or figurative -- would want us to remember in our holiday prayers.

Will the White House read this column and decide upon a mass clemency?  Unlikely.  Such a bold step might make President Obama truly worthy of his Nobel Prize, and win him the praise of history, but political leaders of all stripes think in terms of poll numbers.  I suspect that a mass clemency could be sold to the American public -- particularly as more and more Americans find their own loved ones imprisoned -- but I understand that to attempt such a courageous step requires a leap of considerable faith.  I am more optimistic that, if enough people clamor for a mass clemency, one inspired state governor -- possibly a lame-duck chief executive without a political future -- will consider such a dramatic and compassionate act.  If that happens, and the social order does not crumble, other political leaders may have the courage to follow.  In the interim, I can only hope that the government lawyers assembling last-minute pardons lists, possibly as I write this, remember that each name they add to their clemency register is another flesh-and-blood human being who will be able to spent the Christmas holiday with his or her family.

While I am impressed by Appel's pitch for mass clemencies, I would have been grateful if President Obama would have granted even a single clemency before heading off to the islands.  In this Thanksgiving post, I called out President Obama and the criminal justice members of his White House team as turkeys.  Now, this Christmas Eve, the label Scrooge seems fitting for all these folks. 

Relatedly, as I have suggested before, I think that the media, public policy groups and the left side of the blogosphere also merit some spiritual grief this Christmas eve.  Save for an few commentaries like Appel's, there has been precious little media or blogosphere criticism of the failure of President Obama to bring any hope or change to modern federal clemency stinginess.  Sadly, far too many criminal justice groups and bloggers, who should be making a big stink about Obama's failure to show a true concern for the meek and wretched sitting in prison this holiday season, seem to be content tucked in their beds without stirring this night before Christmas.

Some related posts on federal clemency realities:

• The true sentencing turkeys on this Thanksgiving eve
• Justified complaints that Obama's first pardon will be of a turkey
• "President Barack Obama proving stingy with his pardon power"
• Notable press stories noting Obama's lack of clemency action
• A simple plea for Prez Obama: grant at least a single clemency in your first 100 days
• Historical evidence that it is NOT too early to start demanding clemencies from President Obama
• When will President Obama start acting like President Lincoln when it comes to the clemency power?
• "The Fall of the Presidential Pardon"
• What might 2009 have in store for . . . executive clemency?