March 28, 2009
Will there be retroactive sentencing justice for drug defendants in New York?
This New York Times article, headlined "Deal on State’s Drug Laws Means Resentencing Pleas," suggests that the plans to reform New York's Rockefeller drug laws include provisions allowing some past sentenced defendants to obtain resentencings:
An agreement reached by Gov. David A. Paterson and legislative leaders this week to give judges more flexibility to determine drug sentences would also allow hundreds of people currently in prison for nonviolent drug offenses to ask a judge to resentence them, the governor said Friday.
The proposal, which sweeps away much of what is left of the Rockefeller-era drug laws, would also create new categories of crimes for so-called drug kingpins and people who sell drugs to children. Mr. Paterson and legislators hailed the plan’s central elements — which would give judges the option of sending many low-level drug offenders to treatment instead of prison even if a prosecutor objects — as sweeping and historic changes in the state’s criminal justice policy....
Mindful of the objections of prosecutors and some Republicans who have criticized the proposal as too lenient on offenders caught with large quantities of drugs, supporters of the plan stressed the new laws’ enhanced criminal penalties. “This is designed to ensure that those who suffer from addiction go to treatment and that those who profit from addiction go to prison,” said Senator Eric T. Schneiderman, a Manhattan Democrat who has led the Senate’s effort to revise the drug laws.
But, as detailed in this Buffalo News article, headlined "Plan to soften state drug laws ignites political storm," nobody should be counting their resentencing chickens yet. This piece notes Republican and law enforcement opposition to the reform plans and it ends with this notable quote:
The Republicans may be in the minority in Albany, but they’re vowing a spirited fight here. “I don’t think it’s over yet,” [Sen. Dale M.] Volker said. “We’re going to do everything we can to weaken [the agreement] and try to modify it, so it doesn’t kill the criminal-justice system.”
Some recent related posts on reforming NY drug sentencing:
- New York commission calling for major drug sentencing reforms
- New York getting closer to dropping the rock
- Might prosecutors keep New York from finally "dropping the rock"?
- New NYCLU report on Rockefeller drug laws
- New York drug sentencing laws finally to get serious reform
Good readings on Senator Webb's courage and Prez Obama's pot shot
This week brought some very different examples of politicians taking very different approaches to national crimes and punishment issues. And some of my favorite on-line commentaors have these good discussions of what we should take away from what we all saw:
Consider first the work of Glenn Greenwald here at Salon.com, who provides important and spot-on commentary headlined "Jim Webb's courage v. the 'pragmatism' excuse for politicians." Because this piece hits so many important points, I likely will have more to saw about this commentary and Senator Webb's courage in future posts.
Now consider the contrast provided by the folks at Reason through these posts about President Obama's response in his town hall to inquiries about legalizing marijuana:
- Obama on Pot: Har Har Har, The Joke's On You!
- The War on Drugs is No Laughing Matter: It's time for Barack Obama to take legalization seriously
- More About Obama's Ditchweed-Level Response to That Marijuana Question
Should we ban all repeat drunk drivers from ever driving again?
My local paper had this story about the sentencing of another repeat drunk driver guilty of killing another innocent victim. These stories are all too common and fuel my general eagerness to get extra tough on repeat drunk drivers. But a notable extra facet of the sentence is what prompted me to blog about this particular case:
A Columbus man was sentenced yesterday to four years in prison for a hit-and-run crash that killed a bicycle rider in 2007. Spencer Andrews, 26, of Maxwelton Court, also is banned from driving for life, Franklin County Judge Richard S. Sheward ruled....
His attorney, Robert Krapenc, said Andrews regrets not stopping on the dark roadway after hitting Sonney. Andrews has sought counseling about the crash, Krapenc said, but was advised not to contact the Sonney family before sentencing. "He knows he is going to spend time in prison and he's said he knows he deserves it," Krapenc told the judge.
Traci Sonney told the judge that her son wanted to be a teacher and planned to study art at the Columbus College of Art & Design. "With his passion for life and the creativity he had, he would have been a powerful, powerful motivator," Mrs. Sonney said. "You left my son mowed down. You're never going to know what you did to my family."
She said Andrews didn't learn from his drunken-driving conviction three years ago. And she asked Sheward to send a message to other hit-and-run drivers. But she left the courtroom in despair after she heard the sentence. "It's not enough," she said, crying outside.
Though others can comment on whether a four-year prison sentence was enough for the defendant here, I found especially interesting that this relatively young defendant is now "banned from driving for life." I do not think I can recall hearing of another sentence that included a lifetime driving ban, but it strikes me as a fairly sensible sentencing provision for some (perhaps all) repeat drunk drivers.
Of course, it may be hard to effectively enforce a lifetime driving ban on all repeat drunk drivers. But it is also hard to enforce lifetime gun possession bans on all felons and to enforce broad living restrictions on all sex offenders, and yet we still continue with such restrictions because of the threats we believe are posed by felons with guns and sex offenders. As this story reminds us, because we have good reason to worry about the threats of posed by drunk drivers to innocent lives, the challenges of enforcing lifetime driving bans on repeat drunk drivers should not alone dissuade us from considering this approach to keep the roads safe.
March 27, 2009
New York drug sentencing laws finally to get serious reform
As detailed in these links, the AP and Reuters are now reporting that reform of the New York Rockefeller drug laws are a done deal:
I will remain chary of any celebration until the Rock reform law is signed, sealed and delivered. But I do think that all the folks who have been working on this issue for so long may have an extra reason to celebrate this weekend (but let's keep it legal, sports fans).
Rapper T.I. gets a year-and-a-day federal sentence on gun charges
I have not followed closely the crime and possible punishment of Clifford Harris, aka rap star T.I. But today was his sentencing, and this early AP story provides the basics:
A judge has sentenced Rapper T.I. to one year and a day behind bars on federal weapons charges. The 28-year-old rapper, whose real name is Clifford Harris, was sentenced Friday.
He will have between 30 and 60 days to report to prison. He already has completed about 1,000 hours of community service and has warned youths about the pitfalls of guns, drugs, violence. He will need to complete 470 more hours. Harris pleaded guilty last March after he was arrested in 2007, attempting to buy unregistered machine guns and silencers.
Because I have not kept up with this case, I am not sure what the applicable guideline range that T.I. was facing. I do know, however, that in the mixed-up world that is federal sentencing, a prison term of one year and a day is actually better than a sentence of, say, 11 months because it means that Harris will be eligible for good-time credits that could entail he servers only just over 10 months actually behind bars.
UPDATE: I just found this AJC article providing useful back-story on the deal that led to this sentence:
Federal sentencing guidelines recommended T.I. serve at least four years and nine months behind bars. But T.I.’s defense team worked out an unheard of deal with federal prosecutors: If T.I. would perform at least 1,000 hours of community service, telling kids about the pitfalls of crime, drugs and gangs and encouraging them to respect the law, he could surrender to the Bureau of Prisons a year later and get a reduced sentence.
Area criminal defense lawyers howled in protest, saying T.I. traded his celebrity for leniency. Federal prosecutors countered the rapper’s influential message would help prevent crime. T.I. has fulfilled his part of the bargain, said Steve Sadow, one of the rapper’s lawyers. “T.I. took this opportunity and ran with it beyond anyone’s expectations.”
A sentencing memorandum filed Wednesday by T.I.’s defense team says the rapper has complied with all the requirements of his plea agreement. This includes serving 300 days of home confinement, attending more than 260 events and earning 1,006 hours of community service credit.
Would "spreading the wealth" help reduce crime and punishment rates?
This new little criminology paper that just showed up on SSRN, titled "Income Inequality and Crime in the United States," ought to help generate a robust debate on a friday. Here is the brief abstract of the brief paper:
This paper investigates the relationship between income inequality and crime. Results show that there is a strong and robust effect of relative income inequality on burglary. Effect on robbery is also strong and robust in most cases.
Of course, these results linking economic crime to economic conditions should hardly be surprising. But, in light of the apparent reality that all sorts of crime and punishment levels often also to correlate to inequalities in wealth (and educational attainment), one cannot help but wonder if Senator Jim Webb's new proposal to "create a blue-ribbon commission to look at every aspect of our criminal justice system with an eye toward reshaping the process from top to bottom" will have to both start and end with "spread the wealth" recommendations.
US Sentencing Commission to conduct a data and research conference in May
I just noticed on the US Sentencing Commission's website this very exciting news: "The United States Sentencing Commission will present a data and research conference in Washington, D.C. on May 5-7, 2009." This link provides these additional details:
This conference will help researchers use Commission data by demonstrating how to find and access Commission’s data and research as well as providing instructional help in working with the Commission’s individual offender datafiles. The conference will be held in the Federal Judicial Center Auditorium of the Thurgood Marshall Federal Judiciary Building in Washington, D.C. near Union Station and Capitol Hill.
The conference will provide attendees with an indepth understanding of how the Commission’s individual offender data is assembled, including how the data is collected from documents submitted to the Commission and how the data is checked for accuracy. Commission staff will also provide training on how to use specific fields within the datafile and will discuss special problems in using federal sentencing data. The conference will also highlight recent research by Commission staff using Commission data. The conference schedule is available at http://www.ussc.gov/DataConf/Schedule.htm.
This is fantastic news about a much-needed (and long-overdue) effort by the US Sentencing Commission to help researchers of all stripes take advantage of all the amazing data and information that the USSC has collected and coded over the last two decades. And the official schedule suggests that both data junkies and data neophytes like me should be able to learn a lot at this important and timely event.
Catching up with all the sentencing news and notes
I have been on the road the last few days and unable to keep up with all of the diverse and dynamic sentencing happenings this week. Fortunately, through links to posts at How Appealing and TalkLeft, we all can catch up quickly.
From How Appealing:
- "ACLU sues DA in nude photo trading case"
- "Enron's Skilling resentencing hearing set for July"
- "Schwarzenegger back in trouble over prison care"
- "'Survivor' star Hatch seeks early release from prison"
- "State's top court hears pros, cons of housing bans for sex offenders; 118 New Jersey towns have such restrictions"
- Deal Reached to End Rockefeller Drug Laws
- Hillary Clinton, the Drug War and Drug Treatment
- Obama Says "No" to Legalizing and Taxing Marijuana
- MD House Passes Bill Restricting Death Penalty
- PA Court Vacates Hundreds of Juvie Convictions
- New Study: Providing Incentives to Snitches Increases False Information
Obviously, these links reference a broad array of large and small stories. Readers are welcomed and encouraged to spotlight (and to debate) which of these stories are most noteworthy and/or important and/or worthy of more blogging.
March 26, 2009
Senator Jim Webb takes his concerns about prison nation to the next level
Senator Jim Webb, who long ago won my heart by showing a serious concern for the problems of crime and punishment in the United States, has now taken his work on these issues to the next level. Specifically, as explained in this local article, Senator Webb "wants a 'top-to-bottom review' by Congress of the nation's criminal-justice system with an eye toward reducing the growing prison population." Here is more from this press report:
With the support of the White House and some Senate Republicans, Webb is proposing a blue-ribbon commission spend 1½ years looking at law-and-order issues. Webb's office says the panel should take a sweeping look at the way the nation controls crime, metes out punishment and returns felons to society.
A background document says of the commission: "Its task will be to propose concrete, wide-ranging reforms to responsibly reduce the overall incarceration rate; improve federal and local responses to international and domestic gang violence; restructure our approach to drug policy; improve the treatment of mental illness; improve prison administration, and establish a system for reintegrating ex-offenders."
Webb has been speaking out on the prison issue for over a year, warning of the economic and social consequences of housing a growing population of criminals.... According to Webb's office, President Barack Obama supports the investigation; so, too, does Sen. Arlen Specter, the Pennsylvania Republican, former Judiciary Committee chairman and ex-federal prosecutor, who is facing a tough re-election campaign. Other supporters include the current Judiciary panel head, Sen. Patrick J. Leahy, D-Vt., and the No. 2 Democrat in the Senate, Richard J. Durbin of Illinois.
The National Criminal Justice Act of 2009 that I introduced in the Senate on March 26, 2009 will create a blue-ribbon commission to look at every aspect of our criminal justice system with an eye toward reshaping the process from top to bottom. I believe that it is time to bring together the best minds in America to confer, report, and make concrete recommendations about how we can reform the process.
And, along with lots of links and other materials, Senator Webb's website has a link to this forthcoming article in this week's Parade magazine, titled "Why We Must Fix Our Prisons."
Brits having familiar debate over sentencing guidelines and judicial discretion
As detailed in this BBC News article, which carries the headline "Judges group attack sentence plan," there is a new debate over an old sentencing issue across the pond. Here is how the article starts:
The body which represents 652 judges in England and Wales has attacked government proposals to introduce compulsory guidelines on sentences. The Council of Circuit Judges said the government's plans were "unnecessary, costly and unwelcome".
The Council said the imposition of mandatory guidelines "may result in injustice to both offenders and victims in individual cases". But Justice Secretary Jack Straw said judges' discretion would remain.
The plans are contained in the Coroners and Justice Bill, which had its third reading in the Commons on Tuesday and will now go to the Lords. BBC Home Affairs correspondent Danny Shaw said it was "highly unusual" for the judiciary to make such a statement.
"A Structural Vision of Habeas Corpus"
The title of this post is the title of this interesting new article by Eve Brensike Primus available via SSRN. Here is the abstract:
For decades, scholars and judges have assumed that federal habeas corpus review of state court criminal convictions should focus on the individual rights of habeas petitioners and that the federal courts should ask whether a state prisoner is being unlawfully detained because the state violated his individual federal rights. This individualized approach to federal habeas review is expensive, time-consuming, and woefully ineffective in stopping states from violating defendants' federal rights. Indeed, many states systematically violate criminal defendants' federal rights with impunity.
This Article proposes a new conception of federal habeas review under which the federal courts focus on states, not on individual petitioners. Federal habeas relief should be available when, but only when, a state routinely violates its criminal defendants' federal rights as part of a systemic practice. Reconfiguring federal habeas corpus review to focus on states and systemic practices would reduce redundancy, increase efficiency, and be more respectful of state institutions while, at the same time, recovering one of the original and now lost purposes of federal habeas corpus review.
March 25, 2009
The importance of being earnest (and timely) when complaining of a breached plea
With apologies to Oscar Wilde, I cannot help but think of his classic play when reviewing the Supreme Court's work today in Puckett. The fact that Puckett's case even made it to the Supreme Court was itself a comedy of errors: a poorly-written plea agreement; misbehavior by a defendant while awaiting sentencing; a failure by defense counsel to object to a possibly breached plea; a willingness by the government to concede a plea breach that was iffy, at best. Add all this up, and one line from Justice Scalia's opinion for the Court captures why few should be surprised that Puckett did not prevail: "Given that [Puckett] obviously did not cease his life of crime, receipt of a sentencing reduction for acceptance of responsibility would have been so ludicrous as itself to compromise the public reputation of judicial proceedings."
Of course, Justices Souter and Stevens dissented and so obviously did not think it would be so ludicrous for the Court to take a different route in Puckett. But even the first line of Justice Souter's opinion suggests he had to hold his nose while seeking to do better by defendants: "Petitioner’s situation does not excite sympathy, but the Court’s holding will stand for a rule in circumstances less peculiar than those here."
Beyond serving as a lesson in how bad criminal defendants make for bad criminal defense law, the Puckett ruling also serves as an important reminder to all counsel to get objections raised and on the record or risk the challenges of plain-error review. And if Puckett has any long-term importance, it will probably be in terms of making plain-error standards even harder for defendants to satisfy.
Final FY2008 quarterly sentencing data from US Sentencing Commission
Just posted on the US Sentencing Commission's website is a finalized set of federal sentencing data for fiscal year 2008. Here is how the USSC describes this latest data doc:
Final FY08 Quarterly Sentencing Update (Published March 24, 2009): An extensive set of tables and charts presenting the final cumulative fiscal year quarterly data on cases sentenced in fiscal year 2008. The report also provides an analysis of sentencing trends over five years for several key sentencing practices.
Another (unsurprising?) SCOTUS defense loss
I am road-blogging to note that the Supreme Court this morning handed down Puckett v US concerning plea breach remedies. SCOTUSblog has the details and links, and I hope to have comments tonight.
UPDATE: The full opinion is available at this link.
State judges in New York asking for greater drug sentencing authority
This new piece from the New York Times, headlined "Letting Judges Have a Say in Sentencing," reports on an interesting front in the debates over drug sentencing law and policy in the Empire State. Here are excerpts:
Justice Safer-Espinoza and 14 other judges who sit in courts throughout the city are circulating an unusual open letter to ask that [Rockefeller drug] laws, modified in 2005, be changed yet again.
They argue that judges — not just prosecutors — should be able to pick among the remedies for nonviolent people who violate the drug law. For some, the judges say, that will be prison. For others, it will be treatment programs overseen by the courts. “This is not a soft-on-crime issue,” Justice Safer-Espinoza said during a recess on Tuesday. “The point is to give judges more alternatives.”
Anyone looking at the lineup of power in Albany might jump to the conclusion that changes are inevitable. The governor and leaders of both the Assembly and the Senate have come out in favor of reforms. But the New York State District Attorneys Association has argued that its members should continue, in effect, to have power over the sentencing. With Democrats holding the State Senate by a single vote, no one is in a hurry to be accused of coddling criminals.
Under current practices, a prison term can be avoided for many drug offenses only if the prosecutor agrees that the case can be handled outside the ordinary channels....
Between 12,000 and 13,000 people are serving prison sentences for nonviolent drug offenses, according to Senator Eric T. Schneiderman, a Democrat who is the chairman of the Codes Committee. The state estimates that public spends about $45,000 per year per prisoner.
“There’s widespread agreement that we have to go to more treatment, and there’s agreement about what works,” Mr. Schneiderman said, adding that that goal can be achieved through different channels. “One of the best programs in the state is run by the Brooklyn district attorney’s office.”
The current struggle is really about whether judges or prosecutors will control access to the alternative programs, and whether second offenders should be eligible for consideration. “This is a matter of power,” Mr. Schneiderman said, “not good, dispassionate public-policy assessment.”
To expand treatment, he said, would cost about $80 million, much of which he said could come from the federal stimulus bill. “The savings will come back to us in about two years,” he said. “If you are able to close more prisons, then you will have real savings.”
Yet another look at the death penalty deterrence question
I just saw on SSRN this paper, titled "Another Look at the Deterrent Effect of Death Penalty." Here is the abstract:
There is a question whether the execution rate is appropriate to examine the deterrent effect of death penalty. Instead of using execution rate, this paper uses dummy variables to categorize states into different groups and to compare the group mean homicide rates. With U.S. state-level panel data for the period 1995-2006, this paper fails to find a significant homicide-reducing effect of death penalty.
Because I lack a deep understanding of statistical methods and social science techniques, I cannot readily assess whether this new paper is a significant contribution to the long-raging debate over the deterrent impact of the death penalty. I would be grateful to hear from informed commentors about whether and how this latest paper contributes to what we know (and don't know) about the real-world impact of capital punishment.
The latest numbers on executions around the world
In its annual report on the death penalty, Amnesty International on Tuesday chronicled beheadings in Saudi Arabia; hangings in Japan, Iraq, Singapore and Sudan; lethal injections in China; an electrocution in the United States; firing squads in Afghanistan, Belarus and Vietnam; and stonings in Iran.
In all, 59 countries still have the death penalty on their books, but only 25 carried out executions last year. Two nations, Uzbekistan and Argentina, banned the death penalty last year. Amnesty International said at least 2,390 people were executed worldwide in 2008, compared with its 2007 figure of at least 1,252.
With at least 1,718, China was responsible for 72 percent of all executions in 2008, the report stated. After China were Iran (346), Saudi Arabia (102), the United States (37) and Pakistan (36), according to the group.
March 24, 2009
"To Cut Costs, States Relax Prison Policies"
The title of this post is the title of this new piece from the New York Times. Here are excerpts:
For nearly three decades, most states have dealt with lawbreakers in two ways: lock more of them up for longer periods, and build more prisons to hold them. Now many governments, out of money and buried under mounting prison costs, are reversing those policies and practices.
Some states, like Colorado and Kansas, are closing prisons. Others, like New Jersey, have replaced jail time with community programs or other sanctions for people who violate parole. Kentucky lawmakers passed a bill this month that enhances the credits some inmates can earn toward release....
Being tough on crime and sentencing has long been the clear path toward job retention for state lawmakers — Republicans and Democrats alike. But the economic crisis is forcing them to take a more pragmatic approach as prisoners are increasingly seen less as indistinct wrongdoers and more as expenses that must be reined in....
Recessions tend to prompt changes to corrections policies. After the recession at the start of this decade, numerous states enacted laws eliminating some long mandatory minimum sentences; several began to offer early release and treatment options to some drug offenders. Those changes, though, were far less reaching than what is happening now and did little to curb exploding corrections budgets.
In the past 20 years, correction department budgets have quadrupled and are outpacing every major spending area outside health care, according to a recent report by the Pew Center on the States. With 7.3 million Americans in prison, on parole or under probation, states spent $47 billion in 2008, the study said.
Some recent related posts:
- The state of cost problems in the states of prison nation
- "To save money on prisons, states take a softer stance"
SCOTUS unanimously reverses Ninth Circuit grant of habeas on IAC claim
SCOTUSblog in this post has these very basic details on the criminal justice opinion handed down by the Supreme Court this morning:
The Court has released the opinion in Knowles v. Mirzayance (07-1315). The decision below, which held for the criminal defendant, is reversed and remanded in a unanimous opinion by Justice Thomas. Justices Scalia, Souter, and Ginsburg join in the judgment except for part two. The opinion is available here.
Though not dealing with sentencing issues, the opinion's to-the-point discussion of state habeas standards and ineffective assistance of counsel claims makes the ruling a must-read for any criminal justice practitioner working on these common appellate issues.
Since I will be off-line the rest of the day, I would be intrigued to hear not only general comments on this unanimous smack-down of the Ninth Circuit's work below, but also specific insights as to why the notable troika of Justices Scalia, Souter, and Ginsburg all refused to sign on to Part II of the opinion.
Maui wowie: pot sentencing impacted by new federal policy
The Los Angeles Times has this interesting article, headlined "Medical pot provider's sentencing postponed," which reports on the sentencing impact of the latest federal marijuana policy development. Here are excerpts:
A federal judge in Los Angeles on Monday postponed the sentencing of man who emerged as a key figure in the national debate over medical marijuana, saying he wanted additional information about a reported change in the Justice Department's policy regarding such prosecutions. U.S. District Judge George H. Wu asked prosecutors for a written response from the Justice Department about its position on medical marijuana prosecutions in light of recent comments from Atty. Gen. Eric H. Holder Jr.
Holder said last week that the Justice Department under President Obama had no plans to prosecute dispensary owners who operated within their state law. Wu said he did not believe that any change in policy would affect the conviction of Charles Lynch, 47. But the judge said he wanted to consider any new information about the policy before imposing sentence. Lynch is facing a mandatory minimum of five years in prison under federal sentencing guidelines.
Assistant U.S. Atty. David Kowal told Wu he didn't think it would be appropriate for the judge to consider any change in policy as it relates to Lynch's impending sentence. But wouldn't such a change "reflect somewhat on the seriousness of the crime?" Wu asked. "I don't think so, your honor," the prosecutor replied....
Lynch's trial last summer showcased the issue of conflicting state and federal marijuana laws. Cultivating, using and selling doctor-recommended medical marijuana is allowed under some circumstances in California and a dozen other states, but federal law bans the drug altogether.
Lynch, of Morro Bay, had argued at trial that he had the blessing of the mayor and other city officials when he opened Central Coast Compassionate Caregivers in 2006. Lynch's defense attorneys wanted to present evidence that he was providing a service to seriously ill patients for whom doctors had recommended marijuana. But they were barred from doing so because the U.S. Supreme Court has concluded that why someone distributes marijuana in violation of federal law is irrelevant.
Prosecutors portrayed Lynch as a cynical entrepreneur who took advantage of the state's medical marijuana law to sell about $2 million worth of the leafy drug over a roughly one-year period beginning in 2006 until his store was raided by the authorities. They accused him of carrying around a backpack stuffed with cash, like a common drug dealer.
Some recent related posts:
- Medical marijuana fans now feeling they can exhale and inhale
- "Time For Marijuana Legalization?"
- Terrific commentary and assessment of the war on drugs
- More calls for an end to the drug war and legalization of marijuana