April 7, 2009
States looking to capture fees through criminal justice systems
The New York Times has this interesting piece on real-world economics in some state courts. The piece is headlined, "Pinched Courts Push to Collect Fees and Fines," and here is how it starts:
Valerie Gainous paid her debt to society, but almost went to jail because of a debt to Florida’s courts. In 1996, she was convicted of writing bad checks; she paid restitution, performed community service and thought she was finished with the criminal justice system. This year, however, she received a letter from Collections Court telling her that she was once again facing jail time — this time for failing to pay $240 in leftover court fees and fines, which she says she cannot afford.
Ms. Gainous has been caught up in the state’s exceptionally aggressive system to collect the court fines and fees that keep its judiciary system working. Judges themselves dun residents who have fallen behind in their payments, but unlike other creditors, they can throw debtors in jail — and they do, by the thousands.
As Florida’s budget has tightened with the economic crisis, efforts to step up the collections process have intensified, and court clerks say the pressure is on them to bring in every dollar. “I would say there is an even more dramatic focus on those funds now,” said Beth Allman, the spokeswoman for the Florida Association of Court Clerks.
Other states are intrigued by Florida’s success, and several, including Georgia and Michigan, have also cracked down on people who owe fines. John Dew, the executive director of the Florida Clerks of Court Operations Corporation, said that when he attended national conferences about fees collection, states were “really looking to what we’re doing in Florida.”
Seventh Circuit notes, but dodges, attacks on federal child porn guidelines
In a new per curiam ruling in US v. Huffstatler, No. 08-2622 (7th Cir. April 6, 2009) (available here), a Seventh Circuit panel discusses the attacks being made on federal child porn guidelines in the course of affirming an above-guideline sentence. Here is part of the discussion:
Huffstatler correctly submits that the child-pornography sentencing guidelines, U.S.S.G. §§ 2G2.1-.2, like the drug guidelines at issue in Kimbrough v. United States, 128 S. Ct. 558 (2007), are atypical in that they were not based on the Sentencing Commission’s nationwide empirical study of criminal sentencing....
Furthermore, since it was the Commission’s failure to exercise its “characteristic institutional role” that persuaded the Supreme Court that district courts possess the discretion to sentence below the crack guidelines based on policy disagreements, see Kimbrough, 128 S. Ct. at 575, Huffstatler contends that sentencing judges possess the same discretion when dealing with the child-exploitation guidelines. This argument was developed by federal defender Troy Stabenow in a 2008 paper, Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines 27-32 (July 3, 2008), http://www.fd.org/pdf_lib/ child%20porn%20july%20revision.pdf. Over the past year, district courts have repeatedly cited Stabenow’s article for the proposition that the child-pornography guidelines’ lack of empirical support provides sentencing judges the discretion to sentence below those guidelines based on policy disagreements with them....
But we are confronted with a different question. Huffstatler ... attempts to invalidate the child-exploitation guidelines, arguing that district judges not only may impose below-guidelines sentences based on their policy disagreements with the child-exploitation guidelines, they must.... Even assuming that district courts may exercise their discretion based solely on policy disagreements with the child-exploitation guidelines (an issue we need not decide here), Huffstatler’s argument is without merit.
Those troubled by the federal child porn sentencing guidelines should not be troubled at all by how this issue gets dodged in Huffstatler. The defendant in Huffstatler was a producer, not merely a downloader, of kiddie porn and he had a long and ugly criminal history. In other words, Huffstatler is a terrible test case for the attacks on the child porn guidelines brought in other courts; in context, the per curiam opinion in Huffstatler is effective and sound for its cautious (and praiseworthy?) discussion of what lower courts have done in other contexts.
April 6, 2009
Should Atkins impact non-capital sentences for mentally retarded defendants?
This article in the Chicago Tribune, headlined "Mentally retarded Texas teen serving 100-year prison term for sex assault of boy: He admitted assaulting 7-year-old, but his retardation was not considered," raises interesting and important questions as to whether and how mental retardation ought to limit non-capital sentencing outcomes. Here is how the article starts:
The crime Aaron Hart confessed to was undeniably repellent. Last September, the 18-year-old man was charged with sexually assaulting a 7-year-old neighbor boy behind a tool shed in the small east Texas town of Paris. A relative of the victim said she walked outside and saw Hart with his pants pulled down, standing next to the boy.
Police read Hart his Miranda rights and he quickly admitted his guilt. On Feb. 11, Hart's court-appointed attorney entered guilty pleas to each of five related felony counts, a jury recommended multiple sentences and a judge then ruled that the prison terms be served consecutively, for a total of 100 years.
That might have been the end of Cause No. 22924 in the 6th Judicial District Court of Lamar County, Texas — just another dismal criminal case on the docket of an obscure town. Except that now, less than two months after Hart was sentenced, every court official who had a hand in the case seems to agree that he doesn't really belong in prison for what amounts to the rest of his life.
That's because Hart is profoundly mentally retarded. He has an IQ of 47, and his parents say he functions at the level of a 9-year-old. The boy he confessed to molesting is mentally retarded as well.
What's more, the judge and the jury never heard any expert testimony about Hart's diminished mental functioning, his capacity to understand his Miranda rights or his ability to assist in his own defense, because his defense attorney never subpoenaed any experts.
And since he has been in jail, Hart himself has been repeatedly raped, according to his parents. The first assault, allegedly by an inmate who is serving a far shorter sentence of just 8 years for sexual indecency with a child, so disturbed the alleged rapist's mother that she called Hart's parents to apologize.
As all Eighth Amendment fans know, the Supreme Court declared in Atkins that the Constitution prohibits states from seeking the death penalty against murderers who are mentally retarded. This case raises the interesting and important question of whether and how Atkins ought to cross over to the non-capital sentencing universe.
April 5, 2009
"States pull back after decades of get-tough laws"
The title of this post is the headline of this extended AP report from this weekend. Here are some excerpts from an effective piece that details legal reform developments in numerous states:
For the last four decades, the laws of the land were all about dropping the hammer on crime by locking away criminals for a very long time.... Nearly half the country and the federal government have adopted some kind of hardcore laws, while "get tough on crime" became the mantra of politicians running for everything from the local city council to the president of the United States....
But after cracking down and incarcerating hundreds of thousands, cash-strapped states including New York, Kentucky and Kansas are pulling back. They face an uncommon confluence of dire economics and prisons bursting at the seams and several have changed, in whole or in part, their stances on hard punishment.
Their reasons: the get-tough laws didn't always work, especially when it came to slowing recidivism, the revolving door of prisoners who get out, mess up again, and come back. There were legal challenges, and questions about whether the punishment always fit the crime.
And of course, there's the money. In tough economic times, the expensive laws are increasingly being deemed expendable.... "The rapid rise in prison populations over the past two decades has now collided with the fiscal crisis," said executive director Marc Mauer.
Two notable new papers on the death penalty
I never get tired of reading what Professor Deborah Denno has to say about the death penalty, and thus I was pleased to discover that she has two new papers posted on SSRN. Both appear to be chapters from new death penalty books, and here are the links:
Split Third Circuit debates crack guideline retroactivity following binding sentencing plea
In a complicated ruling on Friday, a divided Third Circuit in US v. Sanchez, No. 08-1847 (3d Cir. April 5, 2009) (available here), seemed to create a circuit split on whether a district court can reduce a previously imposed crack sentence based on a binding plea agreement. The first paragraph of Judge Roth's dissent from the Sanchez majority provides a flavor of the issues involved:
No good deed goes unpunished. The majority provides for resentencing under § 3582(c) for criminal defendants who go to trial – but not for those who enter into binding plea agreements. For the majority, the binding nature of such agreements justifies a difference in the treatment between the offenders who choose to go to trial and those who choose to plead guilty thus saving judicial and governmental resources. I find this distinction false because a jury verdict is also binding on the parties. Accordingly, I believe that the binding effect of the factors leading up to the judgment should not preclude the application of § 3582(c). For these reasons, I respectfully dissent from the majority opinion and suggest that defendants sentenced under binding plea agreements should be permitted to move for resentencing based on a change in the Guidelines that would affect the basic elements that led up to the final plea agreed upon.
For various reasons, Sanchez is not likely a good cert vehicle. But the ruling spotlights another challenging legal issue that has arisen in the retroactive implementation of the new crack guidelines. It will be interesting to see if the Supreme Court ever takes up any cases involving resentencings under § 3582(c).
April 5, 2009 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack