May 5, 2009
Giving credit where credit is due for providing a different perspective on SCOTUS nominees
I am pleased to see that columnist Stephen Henderson, in this newspaper piece headlined "Age and the Supreme Court," makes reference to this blog post of mine from yesterday titled "For the Supreme Court, Younger Isn’t Necessarily Better." However, though I am happy to be the conduit for the insights in the post, the credit for the substance of the post must go to a former law-school classmate of mine (who indicated to me that he preferred to not be named in the post).
Though I personally agree with many of the thoughts expressed in the prior post, my former classmate should get the credit for the insights and the wisdom to be found therein. Perhaps upon seeing that I am being mistakenly praised for his genius, my former classmate will be okay if I share his name. In the meantime, I will just encourage everyone to continue to keep thinking (and sharing) different thoughts about whom President Obama should nominate to the Supreme Court.
Some prior posts on SCOTUS personnel (including some with my own (and others') ruminations):
A helpful release at the start of the US Sentencing Commission's data conference
As previously blogged here, the United States Sentencing Commission is conducting a multi-day data and research conference, which started today. Not coincidentally, I suspect, one can now find this new publication on the USSC's website:
Introduction to the Collection of Individual Offender Data by the United States Sentencing Commission: This report introduces the process the United States Sentencing Commission uses to create its fiscal year individual offender datafiles from documents submitted to the Commission. Issues surrounding the use of differing form types and conflicting information among documents are also addressed. The report is designed to help researchers use the Commission’s datafiles by providing answers to common data analysis questions.
Some related posts:
- Letter to the USSC about modern sentencing data
- US Sentencing Commission to conduct a data and research conference in May
- US Sentencing Commission releases 2008 Annual Report and Sourcebook
Could vocal opposition to the death penalty, mass incarceration and the drug war help lead the GOP out of the wilderness?
The party switch of Senator Spector, after big losses in the last two elections, has conservative pundits talking about how the Republican party can get its mojo back. For example, I heard on NPR yesterday this segment with David Frum and Jonah Goldberg and this segment with Christine Todd Whitman, David Keating, and Matthew Continetti. But persistently missing in all the chatter is what I think could and should be a new winning issue for the GOP: being (fiscally) smart on crime by opposing wasteful government spending on the death penalty, mass incarceration and the drug war.
Especially on the Rush Limbaugh show, folks on the right often assert that the GOP is the only party truly committed to the principles of "life, liberty and the pursuit of happiness." When I hear that claim, however, I wonder how it squares with modern Republican support for the death penalty (which ends life), and for long prison terms and drug prohibitions (which severely restrict both liberty and the pursuit of happiness). I find vocal GOP support for the death penalty, mass incarceration and the drug war especially jarring when leading Republicans complain about big government, bureaucracy and excessive taxing and spending — all these problems find particular expression, especially at the state level, in the modern operation of the death penalty, mass incarceration and the drug war.
Beyond principle, a changed course on the death penalty, mass incarceration and the drug war could make for good politics. Many on the religious right have problems with state killing and with a penal system that does not focus on redemptive potential. And both minority populations and younger voters, two groups the GOP is struggling to reach, would surely take note and be impressed if a Republican candidate were to express strong opposition to the most costly and oppressive facets of modern mass incarceration and the drug war.
I am not expecting the GOP to change course on these criminal justice issues anytime soon, but I am hoping that desperate electorial times might at least prompt some new thinking in traditional "tough-on-crime" quarters. Notably, in the 1990s the Democrats got some of their mojo back when President Bill Clinton moved right on crime and justice issues. I do not think I am crazy to suggest that Republicans might profit from flipping the Clinton playbook.
Lots of related posts on the modern politics of crime and punishment:
- What does the tea party movement have to say about taxing and spending on the death penalty, the drug war and mass incarceration?
- My latest (academic?) musings about progressive punishment perspectives
- Inaugural rhetoric about freedom and liberty in prison nation
- Will we invest in classrooms or cells in these tough times?
- The state of cost problems in the states of prison nation
- Why we need a re-entry czar and a task force on the prison economy
- New FAMM report and poll data on reforming mandatory minimums
- Noticing the new ex-felon voting block
- A good question about prison nation ... dodged
- What do "our ideals" say about mass incarceration or LWOP for juves or acquitted conduct or the death penalty or GPS tracking or...?
- "Real commander needed for the war on drugs"
- A dollars and sense criticism of Senator Obama's crime-fighting plans
- FSR publishes issue on "American Criminal Justice Policy in a 'Change' Election"
UPDATE with apologies: For some tech glitch reason, only the first 20+ of the 30+ comments to this post are showing up. I do not know why and I hope I can/will be able to rescue all the additional rine comments that are being saved but are not visible.
Looking (a bit too hard) for problems for SCOTUS short listers
I am a bit disappointed, though not really surprised, by this new Slate piece from Emily Bazelon, titled "Future Dangerousness: The tricky sex offender case that could trip up one of the judges on the short list to replace Souter." The piece is focused on Judge Diane Wood and examines a 2004 case from the Seventh Circuit, Doe v. City of Lafayette, in which Judge Wood voted in favor of a sex offender — first as the swing vote in a split panel and then as a dissenter after the case was reviewed en banc.
I have no problems closely examining significant opinions authored by judges who are possible SCOTUS nominees (though I wish the media would focus a lot more on possible candidates others than circuit judges). But in this 2004 Doe case, Judge Wood merely cast a vote, she did not even write an opinion.
If Judge Wood (or any judge) gets tapped for the top court, all votes in all cases seem to be fair game for analysis and criticisms. But, only days after Justice Souter announced his retirement, it seems a bit too early to be looking so hard for problems in the voting records of well-regarded experienced jurists — jurists who, if they are doing their jobs right, will have sometimes concluded that the law called for a ruling that might not win majority approval by voters.
Effort to repeal death penalty in Colorado now faltering
According to this New York Times article, the on-going efforts to repeal the death penalty in Colorado had a rough day in the state senate. Here are some details:
An effort to repeal Colorado’s death penalty law stumbled Monday in the State Senate after two hours of sometimes anguished and angry debate, leaving the bill in limbo and supporters scrambling to find votes as the end of the session looms this week.
The Colorado House voted in support of repeal, by a single vote majority, last month. In their debate, lawmakers focused on questions of deterrence, certainty or doubt in the age of genetic evidence, and, far from least in the mix, money in a time of shrinking government resources.
As proposed, the bill would have redirected about $1 million now devoted to death penalty costs to the Colorado Bureau of Investigation for investigating unsolved crimes known as cold cases. But the amendment that passed on a voice vote Monday pledged new money for cold cases — popular with lawmakers on both sides of the aisle — but made no mention of the death penalty....
Contrary to the myths and legends of rough justice, most of the West — with the major exception of California — did not race back to imposing the death penalty after 1976, when the United States Supreme Court allowed states to resume the practice.
Colorado, Montana and Wyoming each have only two inmates on death row, as did New Mexico when it repealed its death penalty law in March, according to the Death Penalty Information Center, a Washington-based research group that opposes capital punishment. Colorado has executed only one person since 1976.
"Uncertainty in the Theory of Deterrence: Experimental Evidence"
The title of this post is the title of this interesting paper by two economists that I came across on SSRN. Here is the abstract:
We conduct laboratory experiments to investigate the effects of deterrence mechanisms under controlled conditions. The effect of the expected cost of punishment of an individual's decision to engage in a proscribed activity and the effect of uncertainty on an individual's decision to commit a violation are very difficult to observe in field data.
We use a roadway speeding framing and find that (a) individuals respond considerably to increases in the expected cost of speeding, (b) uncertainty about the enforcement regime yields a large reduction in violations committed, and (c) people are much more likely to speed when the punishment regime for which they voted is implemented. We also obtain a theoretical result that states that, holding the true expected cost constant, people in an uncertain environment perceive a larger expected cost of speeding in the regime with higher probability. Our results have important implications for a behavioral theory of deterrence under uncertainty.
May 4, 2009
Analyzing the cert grants in both Graham and Sullivan
Over at SCOTUSblog, Lyle Denniston has this interesting new post titled "Analysis: Why two juvenile sentence cases?". Here is a snippet of Lyle's analysis:
With a continuing wave across the country of tougher punishment for youths who commit serious crimes, the Supreme Court on Monday returned to the constitutional controversy that the wave has stirred. The Court took on two new juvenile sentencing cases that, seemingly raises the same issue, but apparently left itself the option of treating them differently. It did not explain, but a few reasons may be suggested....
It is quite common for the Court, when it has two or more cases raising the same issue, to pick only one for review, or to consolidate them for a joint ruling. It took neither option this time, setting the stage for two rulings, perhaps with different potential outcomes.
[T]here is at least a chance that Sullivan might not be allowed to raise his constitutional argument, because it could be found to have come too late. The Graham case only involves the specific issue of an Eighth Amendment violation in a life without parole sentence for a minor. Thus, the Court may have wanted a second case before it in case it should find that Sullivan did not present that claim properly.
Another difference between the two, of course, is the youths’ relative age. The Court, if it reached the life sentence issue in Sullivan, might be more sympathetic to a youth of his age getting a life term for a sexual crime that left the victim injured, but not dead. The Court last Term ruled out a death sentence for such a crime (in Kennedy v. Louisiana, involving a child victim who was not killed).
Graham, by contrast, is four years older, and was given a life prison term after returning to criminal activity after being spared a long prison term for an earlier episode. Some members of the Court may have found him a less sympathetic figure, and wanted to have that case on the docket to perhaps limit the scope of any ruling that went against life terms for teenagers.
Indeed, it might be speculated that the Court spent most of a month looking at these two cases as it tried to sort out just what it wanted before it, and the grant of both cases might well have been a compromise between the Court’s two ideological wings. The Court has been split deeply in its most recent rulings limiting the scope of the death penalty, and there is no reason to anticipate a more unified bench on this new controversy involving life without parole — a severe sentence for a minor.
The Court will hold oral argument on the two cases in the Term starting Oct. 5, very likely in tandem hearings on the same day.
I think all of Lyle's speculations for why the Court decided to take up both Sullivan and Graham make sense, and I was prepared to predict split rulings were in the works when I first saw that the defendant in Grahamwas 17 at the time of his LWOP sentence. However, the procedural quirkiness surrounding the imposition of an LWOP sentence in Graham (discussed here), as well as the fact that Sullivan involves a first-offense rape and Graham involves second-offense robbery, makes me wonder if some other factors played a role in the decision of SCOTUS to set up a juve LWOP double-header.
Other posts today on Sullivan and Graham:
- SCOTUS grants cert in Sullivan, juve LWOP case
- The (unpreserved?) procedural issues in Grahamjuve LWOP case
Attacking the federal sentencing guidelines based on moral obligations
"A Personal Affair: Moral Obligation and the New Common Law of Sentencing" is the title of this new piece on SSRN authored by Hans Grong. Here is the abstract:
Sentencing has a tortured history in the federal system. The Sixth Amendment, due process, and separation-of-powers problems with the current sentencing regime have been extensively documented. But this Article deals with a different problem. This Article deals with the moral failure of the federal sentencing regime. This Article contend that the current system of federal sentencing fails to treat defendants as human beings and, as such, fails to fulfill its moral obligation to impose just sentences. As a response, this Article proposes a new paradigm for federal sentencing. This Article outlines a federal sentencing regime based on guided, principled judicial discretion, which I refer to as "the new common law of sentencing."
The primary argument is based on the moral obligation that society and the criminal-justice system have in the context of sentencing. Our criminal-justice system has an obligation to impose just sentences. Any given sentence cannot be just, however, unless it takes the individuality of the defendant into account in a way that is impossible under the mechanical system currently in place. This Article proposes a new paradigm for sentencing based on guided judicial discretion. This new model, which is referred to as the "new common law of sentencing," is an attempt to return to the judicial-discretion model of sentencing while alleviating the problems that plagued the pre-1984 sentencing system. In effect, it argues for a return to the literal text of the Sentencing Reform Act and a rejection of the presumptions in favor of the Sentencing Guidelines.
Another notable lean-times report on the prison economy
The Salt Lake Tribune has this interesting piece, headlined "Probation and parole officers stretched thinner: Corrections struggles to track offenders in tight budget times," providing another on-the-ground prespective of the criminal justice impact of lean economic times. Here are excerpts from the story:
[W]ith probationers and parolees now comprising one of every 136 people in the Salt Lake Valley, monthly checks are growing to be nearly impossible. Officers are coping by downgrading more high-risk offenders and ending supervision earlier for others.
Recent Department of Corrections budget cuts have included a six percent job reduction and the closure of an offender diagnostic center that recommended sentences to help judges. They have also thinned the number of courses offered at Adult Probation and Parole offices, such as anger management and parenting....
Some probationers and parolees pay $180 per month for ankle-monitoring devices and officers to track them. But the bill is a tough sell for people with criminal records already struggling to find or keep jobs . And officers usually have to check on unemployed offenders more often since, Luke said, "free time can turn to drugs and deviant thoughts."
What might (and should) DOJ and other potential amici say about Graham and Sullivan?
I am already having a hard time not getting too excited about the Supreme Court's cert grant today in the juve LWOP cases of Graham and Sullivan (basics here). Part of the excitement relates to the fact that we can and should expect a new Justice to be on the Court to hear these cases, and thus I can and should that this Justice might breathe some new life into a troublesome modern Eighth Amendment jurisprudence. Another part of the excitement relates to the question that titles this post — namely, the uncertainty that now surrounds what the Obama Justice Department and other likely amici might have to say about the constitutionality of life without parole sentences for juvenile offenders.
Of course, we can and should expect a number of public policy groups and defender groups to file amicus briefs in support of the defendants in Graham and Sullivan. Organizations like Human Rights Watch and The Sentencing Project and others have long been vocal opponents of juve LWOP sentences, and I would expect and hope they will share their insights with SCOTUS in these cases. Also, defender groups like NACDL and others might also chime in to flag some unique lawyering perspectives in these cases.
But what about the US Department of Justice and/or Attorneys General from other states? Though they could opt to sit out the case altogether, I have an inkling that a diverse set of state and federal prosecutors may have a diverse set of perspectives concerning the proper way to apply (and limit) the Eighth Amendment in the juve LWOP setting. Can and should we expect a bold amicus brief from federal AG Eric Holder and SG Elena Kagan? Can and should we expect dueling amicus briefs from states that permit and states that preclude juve LWOP? I suppose time (and the SCOTUS briefing schedule) will soon tell.
Some recent related posts:
- SCOTUS grants cert in Sullivan, juve LWOP case
- The (unpreserved?) procedural issues in Graham juve LWOP case
The (unpreserved?) procedural issues in Graham juve LWOP case
Thanks to SCOTUSblog's post here, everyone can now check out this cert petition in Graham v. Florida, the juve LWOP case that the Supreme Court decided to take up today (basics here). Assuming the fact statement in the Grahampetition is accurate, the sentencing procedures used in the case are as troubling as is the substance of the LWOP sentence.
According to the cert petition, the defendant in Grahamwas given an LWOP sentence by a judge as a sentence for violating the terms of his probation(!) by committing an armed robbery a year after being placed on probation for a prior armed burglary. As described, the procedures used to impose the LWOP sentence in Graham would seem to raise an array of possible Fifth and Sixth Amendment issues. But the Graham cert petition only raises an Eighth Amendment claim (and other procedural claims may not have even been raised below), and thus it is unclear whether or how these procedural issues will be addressed as this case gets considered by the Justices.
Some recent related posts:
- EJI files seeks cert on claim that juve LWOP is unconstitutional for 13-year-old offender
- "A Life Term for Rape at 13: Cruel and Unusual?"
- CNN covers Sullivancase as SCOTUS considers juve LWOP
- SCOTUS grants cert in Sullivan, juve LWOP case
California takes steps to get executions going again
As detailed in this Sacramento Bee article, headlined "State seeks to start executions again with new rules," California has taken a crucial step to get back to conducting executions. Here are the basics:
California took a major step Friday to clear one of two legal hurdles that have halted executions at San Quentin for more than three years. The state posted its new lethal injection protocol for executions and opened a public comment period as required under California's Administrative Procedures Act....
San Quentin's death row, the nation's largest, houses 680 prisoners. The moratorium began on Feb. 21, 2006, when U.S. District Judge Jeremy Fogel of San Jose stayed the execution of Michael Morales after a challenge by his attorneys to the state's lethal injection methodology....
In December 2006, Fogel found the state's practices in violation of the U.S. Constitution's ban on cruel and unusual punishment. He cited evidence that condemned inmates are at risk of severe, unnecessary pain.... The hiatus has continued despite the U.S. Supreme Court's April 2008 ruling in a Kentucky case that lethal injections are not inherently unconstitutional.
A task force formed by Schwarzenegger revamped execution procedures in 2007 in an effort to allay Fogel's concerns, and a new death chamber has since been constructed.
But before Fogel could review the changes, a Marin Superior Court judge ruled that the governor and corrections officials couldn't switch execution protocol without public reaction. The 1st District Court of Appeal in San Francisco affirmed the lower court's ruling in November, and the state chose not to seek further review.
"For the Supreme Court, Younger Isn’t Necessarily Better"
A law-school classmate of mine was kind enough to allow me to post here his terrific bloggy op-ed with advice for President Obama as he considers his first Supreme Court nominee. The piece caries the same title as this post and goes a little something like this:
The conventional wisdom is that in choosing a successor for Justice David Souter, Barack Obama should rule out anyone over sixty years old. There is a surface logic to this reasoning -- after all, if Clarence Thomas is likely to have a forty-year run on the court, why shouldn’t President-elect Obama want the same fate for his nominees? But, there are several reasons why, when it comes to Supreme Court justices, younger isn’t necessarily better.
First, the idea of choosing young Supreme Court justices is based in part on the false assumption that Supreme Court justices are likely to step down from the court at random intervals. In fact, as Justice Souter’s retirement demonstrates, Justices can usually time their retirement. Particularly when a justice is chosen based on his/her ideology, there is a strong likelihood that the justice will keep that in mind when it comes to retirement. Obviously, octogenarians are not always able to control when they leave the bench (Justice Marshall is a poignant example of this phenomenon), but more often then not, a justice will be able to wait out a sitting President.
Second, it isn’t necessarily good for the Court for justices to sit on the bench for forty years. While some of the justices who have enjoyed long tenures on the Court have thrived (e.g., Justice Stevens), there is a danger that the longer a justice remains on the court, the more out of touch he or she will become. To the extent President-elect Obama hopes to bring about lasting change, he should proceed based on the assumption that the President who is elected in 2028 will be able to choose just as wisely as he can when it comes to nominating Supreme Court justices.
Third, since President-elect Obama will likely want a nominee who brings additional diversity to the bench both in terms of family background and experience, it may be easier to accomplish this goal if he includes an older pool of potential nominees. In particular, Obama may want to appoint the first Latino justice. It is notable that the first Jewish Justice (Brandeis) was 60 when he was appointed, and the first African-American was 59. This is likely because the Presidents who made the nominations wanted to make sure that no one could question the credentials of these nominees. Further, if diversity on the bench is important to Obama, he should bear in mind that the pool of potential female, African-American, Latino, and Asian-American justices will keep increasing over time, and thus, if he chooses a 60-year old now, someone who is in his/her early 40s now will be able to replace that person. Moreover, choosing an older justice may make it easier to find a nominee who has a longer, more diverse resume. For example, when Chief Justice Warren was tapped for the bench, he was already 62. Likewise, Justice Marshall’s relatively advanced age gave him an opportunity not only to have a long career at the NAACP Legal Defense Fund, but also time as Solicitor General and as an appellate judge.
Fourth, if President Obama wants his nominee to make a big impact right from the start, it makes sense to choose a nominee who already comes to the court with a great deal of stature. Again, choosing someone who is a little longer in the tooth may make it easier to find someone who fits this bill.
Finally, some of you may be thinking that the Republicans choose young justices, so Obama should follow suit. But, there may be good reasons why what’s good for the goose isn’t necessarily good for the gander. The Republicans’ ideal justice is probably an originalist like Justice Scalia; their goal on the court (apart from approving ever-greater powers for the executive) is generally to stop the clock or, even better, turn the clock back to 1789. The dominant wing of the Republican party is certainly not interested in appointing justices who believe in a living constitution that will take into account, for example, the growing hostility to the death penalty throughout the world. Thus, if the Republicans can lock someone in now who will issue the same rulings for the next forty years, they will probably be happy. But, just as President Roosevelt, appointing justices in the 1930s could not foresee that the key issues that would face the court in the 1950s and 1960s would be civil rights and civil liberties, President Obama ought to realize that he can’t foresee what issues will face the court in the 2030s. While I am confident that any nominee he will choose would be flexible enough to adapt to the world we will face in the 2030s, it is more likely that the President we elect in 2028 will have a better sense of the challenges the court is likely to face at that time.
Having said all of this, it may very well be that the best candidate for the Court turns out to be someone who is under 50. But, President Obama should not overlook an outstanding candidate like California Supreme Court Justice Carlos Moreno simply because he has already celebrated his 60th birthday.
Unanimous SCOTUS win for defendant in Flores-Figueroa
Providing a notable contrast to last week's ruling in Dean (basics here), today the Supreme Court vindicates a federal defendant's mens rea claim in the interpretation of an identity-fraud statute. Here are the basics from SCOTUSblog:
The Court has released the opinion in Flores-Figueroa v. United States(08-108). The decision below, which held for the United States, is reversed in a 9-0 opinion by Justice Breyer, available here. Justice Scalia filed an opinion concurring in part and in the judgment, joined by Justice Thomas, and Justice Alito filed an opinion concurring in part and in the judgment.
And here is the first paragraph from Justice Breyer's opinion in Flores-Figueroa (emphasis in the original):
A federal criminal statute forbidding “[a]ggravatedidentity theft” imposes a mandatory consecutive 2-year prison term upon individuals convicted of certain other crimes if, during (or in relation to) the commission of those other crimes, the offender “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” 18 U. S. C. §1028A(a)(1) (emphasis added). The question is whether the statute requires the Government to show that the defendant knew that the “means of identification” he or she unlawfully transferred,possessed, or used, in fact, belonged to “another person.” We conclude that it does.
SCOTUS grants cert in Sullivan, juve LWOP case
As detailed in this order list, among the cases in which the Supreme Court granted cert this morning is Sullivan v. Florida. As detailed in posts linked below, Sullivan involves an Eighth Amendment challenge a sentence of life without parole given to a rape defendant who was only 13 years old(!) at the time of the crime. For a variety of reasons, Sullivan has the potential to be the biggest non-capital Eighth Amendment case decided by the Supreme Court in many years.
Interestingly, as noted here by SCOTUSblog, the Supreme Court also took up a companion juve LWOP case, Graham v. Florida, which apparently involves an life sentence for a non-murder crime committed by a 17-year-old offender. As suggested in the prior paragraph, Sullivan and Graham are likely to be the cases to watch for sentencing fans in the next SCOTUS Term (which, of course, is going to involve a brand new Justice). Exciting times.
Some related posts on juve LWOP and the Sullivan case:
- EJI files seeks cert on claim that juve LWOP is unconstitutional for 13-year-old offender
- "A Life Term for Rape at 13: Cruel and Unusual?"
- CNN covers Sullivan case as SCOTUS considers juve LWOP
- NYTimes coverage of very young lifers
- Does Roper suggest young juve LWOP is unconstitutional?
- Juves serving life terms
- Life without parole for juvenile may be cruel, but it is not unusual
- The next issue in sentencing of juveniles?
Has there been any in-court impact from DOJ's new crack sentencing policy?
The new crack sentencing policy talk from the new Justice Department (basics here and here) has justifiably garnered lots of media attention. For example, over the weekend the San Francisco Chronicle had this front-page article, headlined "Advocates predict change in cocaine sentences." And today I have seen these editorials supporting the equalization plan now proposed by DOJ:
- From the Deseret News here, "End the cocaine disparity"
- From the Chattanooga Times Free Press here, "Unfair sentence for crack cocaine"
But while others continue to call for Congress to embrace DOJ's new suggestion to eliminate the crack/powder disparity, I continue to wonder whether there has been (or will be) any in-court fallout from DOJ policy even before Congress gets around to acting.
It surely will take weeks (and probably many months) before DOJ's advocacy produces legislation that "completely eliminates the sentencing disparity between crack and powder cocaine." Meanwhile, nearly 100 crack sentences are imposed in federal courts each and every week (and more are appealed each week). Were any of the sentencings late last week impacted by DOJ's new crack sentencing policy? Will any crack sentencings scheduled for this coming week be affected? In my view, they certainly should be, but that does not mean they will.
Some recent related posts:
- With the new DOJ advocating completely eliminating crack/powder disparity, now what?
- Watching the webcast of the Senate crack disparity hearing
- Is the new DOJ about to crack the stalemate over fixing the crack disparity?
- New York Times editorial on crack sentencing
- DOJ's basic game-plan while urging crack sentencing reform from Congress
- Eager to hear and post reports on courtroom ripples of new DOJ crack/powder policy
May 3, 2009
Banishment a popular (but uneven?) special punishment in Georgia
As detailed in this effective local article, headlined "More than 500 people have been banished from Houston County," one Georgia county makes banishment a (semi)regular punishment for certain offenders. Here are the particulars:
More than 500 people have been banished in Houston County since 1998 when the District Attorney’s Office started tracking this sentencing option. Still, that’s about one out of every 60 cases, comparing the 500 banishments to more than 30,000 cases for the same time frame, said Houston County District Attorney Kelly Burke....
Keeping a person out of the county where the crime was committed during the probationary period may actually help the offender, Burke said. For example, banishment disrupts the network of a drug abuser or dealer, breaking the cycles of addiction and the criminal activity of buying and selling, Burke said. “I believe banishment really works,” Burke said. “It provides a chance to get your life straight while on probation.”
In the case of domestic violence, often the victim doesn’t want the abuser to go to jail but to simply be left alone, Burke said. Banishment gives the victim peace of mind that they can safely go to a restaurant or to a child’s soccer game without the offender showing up and claiming they didn’t know the victim was at the restaurant or the game — a common scenario that plays out in restraining orders, Burke said....
Jim Rockefeller, a criminal defense attorney in Warner Robins, said banishment can be a useful tool with someone who is involved in some sort of network of gang activity or drug dealers. However, wholesale use of banishment would result in simply shuffling people around the state, he said. Also, if wrongly used, banishment can set up a person for failure by cutting them off from positive networks such as families and jobs, Rockefeller said.
Rockefeller said he believes it would be appropriate for the state General Assembly to develop uniform guidelines on the use of banishment. Another option that judges might consider would be requiring banishment consideration to be part of arguments during sentencing hearings, rather than part of negotiated pleas among prosecutors and defense attorneys, Rockefeller said.
In neighboring Bibb County, banishment is rare. “We have done it a few times since I’ve been in office but not a whole lot,” Bibb County District Attorney Howard Simms said. “Some of our judges don’t like it.” Simms said he also has problems himself with the enforceability of banishment and other issues it creates, such as with child custody.
Superior Court Judge S. Phillip Brown said there are some practical considerations of why banishment wouldn’t work on a broad-based approach or as a routine matter. What about doctor’s appointments, for example?, Brown said. His concern is that banishment may set up an offender for failure when the justice system should encourage success.
With 500 cases of banishment over a fairly long period in a single Georgia country, we should be able to move past anecdote and be able to collect some empirical evidence about whether banishment is an effective sentencing provision for certain classes of offenders. I fear that no serious banishment studies are underway, but this would be a valuable and important opportunity from criminology or sociology grad students looking to make a real impact with some ground-level research.
A sentencing aside amidst all the SCOTUS speculation
Today's above-the-fold front-page article in the New York Times is all about President Obama's legal past as he prepares to make a pick for the Supreme Court's future. This article, which is headlined "As a Professor, a Pragmatist About the Supreme Court," includes this notable aside noting how President Obama addressed sentencing issues back when he was Professor Obama:
Former students say that Mr. Obama does not particularly prize consistency or broad principle.... [W]hen it came to sentencing laws, Mr. Obama led [student Adam] Bonin in a more conservative direction than the student had expected. The primary victims of black criminals were fellow blacks — and so minority neighborhoods had an interest in keeping sentencing laws tough, he taught.