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January 10, 2009

Will Texas execute more than a dozen prisoners in the first quarter of 2009?

Though not quite as eye-popping as this other Texas death row story, anyone who seriously studies the administration of capital punishment should be closely following the fact, as reported in this AP piece, that Texas is scheduled to execute a remarkable number of prisoners over the next few months:

Texas is wasting little time this new year claiming its annual notoriety as the nation's most active capital punishment state. Convicted killer Curtis Moore, condemned for the slayings of three people during a drug-ripoff robbery in 1995 in Fort Worth, is set for lethal injection this week in what would be the first execution in the United States in 2009.

It's the first of eight scheduled punishments this month in the U.S., all but two of them in Texas. The 18 prisoners put to death in Texas last year accounted for about half of the 37 executions carried out in the country. Since the U.S. Supreme Court in 1976 allowed capital punishment to resume, 423 Texas inmates have been put to death. Virginia was next with 102.

Moore, 40, was set to die Wednesday. Two more executions are set for the Texas Department of Criminal Justice Huntsville Unit next week, then three more the following week. The six Texas inmates set to die in January are among at least 14 with execution dates already this year. Three more are set to die in early February, four in March and another in April....

In Texas, where a record 40 prisoners were put to death in 2000, execution dates are set by trial court judges from the county where the prisoner was convicted. For inmates now with scheduled dates, legal appeals either are exhausted or in the final stages in appeals courts.

Some recent related posts:

January 10, 2009 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

A (back-handed?) rejection of Booker retroactivity from the Sixth Circuit

In addition to the Sixth Circuit's affirmance of a long within-guideline child porn sentence (discussed here), the court yesterday also rejected a claim that Booker should be applied retroactively in Duncan v. US, No. 06-5021 (6th Cir. Jan. 9, 2009) (available here).  A helpful reader sent me these astute observations about the Duncan opinion:

The panel affirmed a sentence against a Booker retroactivity challenge, but the short opinion was interesting since it almost read like a cert petition in favor of Booker retroactivity. (The specific issue was Booker retroactivity back to Blakely, as opposed to Apprendi.) The court made a lot of interesting arguments in favor of retroactivity..., but ultimately held that it was constrained by circuit precedent.

January 10, 2009 in Apprendi / Blakely Retroactivity | Permalink | Comments (1) | TrackBack

"The Subjective Experience of Punishment" now in print

About a year ago I highlighted here Adam Kolber has SSRN draft titled "The Subjective Experience of Punishment."  I am now pleased to report that this draft is now in print here at the Columbia Law Review.  It appears that the abstract has changed a bit, and here is how it now reads: 

Suppose two people commit the same crime and are sentenced to equal terms in the same prison facility. I argue that they have identical punishments in name only. One may experience incarceration as challenging but tolerable while the other is thoroughly tormented by it. Even though people vary substantially in their experiences of punishment, our sentencing laws pay little attention to such differences.

I make two central claims: First, a successful justification of punishment must take account of offenders’ subjective experiences when assessing punishment severity.  Second, we have certain obligations to consider actual or anticipated punishment experience at sentencing, at least when we can do so in a cost-effective, administrable manner.  Though it may seem impossible or prohibitively expensive to take punishment experience into account, we should not accept this excuse too quickly. In civil litigation, we often make assessments of emotional distress.  Even if we cannot calibrate the punishments of individual offenders, we could enact broad policies that are better at taking punishment experience into account than those we have now. I do not argue that more sensitive offenders should receive shorter prison sentences than less sensitive offenders who commit crimes of equal blameworthiness.  I do, however, argue that when they are given equal prison terms, more sensitive offenders receive harsher punishments than less sensitive offenders and that it is a mistake to believe that both kinds of offenders receive punishments proportional to their desert.

January 10, 2009 in Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

"Texas death row inmate pulls out eye, eats it"

A helpful reader flattered me(?) by saying he thought of my blog as soon as he saw the headline that titles this post and this AP article.  Here are a few more gruesome details:   

A Texas death row inmate with a history of mental problems pulled out his only good eye and told authorities he ate it. 

Andre Thomas, 25, was arrested for the fatal stabbings of his estranged wife, their young son and her 13-month-old daughter in March 2004. Their hearts also had been ripped out. He was convicted and condemned for the infant's death.  While in the Grayson County Jail in Sherman, Thomas plucked out his right eye before his trial later in 2004.  A judge subsequently ruled he was competent to stand trial.

A death-row officer at the Polunsky Unit of the Texas Department of Criminal Justice found Thomas in his cell with blood on his face and took him to the infirmary. ""Thomas said he pulled out his eye and subsequently ingested it," agency spokesman Jason Clark said Friday.

Thomas was treated at East Texas Medical Center in Tyler after the Dec. 9 incident.  Then he was transferred and remains at the Jester Unit, a prison psychiatric facility near Richmond southwest of Houston.  "He will finally be able to receive the mental health care that we had wanted and begged for from day 1," Bobbie Peterson-Cate, Thomas' trial attorney, told the Sherman Herald Democrat. "He is insane and mentally ill. It is exactly the same reason he pulled out the last one."

January 10, 2009 in Death Penalty Reforms | Permalink | Comments (4) | TrackBack

January 9, 2009

Notable long child porn sentence upheld by split Sixth Circuit

The circuits have already issued a number of notable sentence decisions today, but the one that struck me as most blog-worthy is the Sixth Circuit's affirmance of a within-guideline child porn sentence in US v. Paull, No. 07-3482 (6th Cir. Jan. 9, 2009) (available here). This first paragraph of the dissent by Judge Merritt in Paull spotlights some (of many) reasons why the decision is notable (and likely worthy of a serious cert petition):

As a recent October 23, 2008, Wall Street Journal article by Amir Efrati points out, our federal legal system has lost its bearings on the subject of computer-based child pornography.  Our “social revulsion” against these “misfits” downloading these images is perhaps somewhat more rational than the thousands of witchcraft trials and burnings conducted in Europe and here from the Thirteenth to the Eighteenth Centuries, but it borders on the same thing.  In 2008 alone the Department of Justice has brought 2,200 cases like this one in the federal courts.  Some trial and appellate judges are sending these mentally ill defendants like Paull to federal prison for very long sentences.  But the 17-1/2 year sentence for Paull may be the longest yet.  He is a 65-year-old, psychologically disabled, former minister with Type 1 diabetes with many complications.  How could this sentence be “not greater than necessary” to punish this crime?

Some related recent federal child porn prosecution and sentencing posts:

January 9, 2009 in Sex Offender Sentencing | Permalink | Comments (27) | TrackBack

"Corrections costs must reflect fiscal realities; State must make bold reforms to system"

The title of this post is the title of this editorial from a local Michigan paper, although I imagine this title might be fitting for editorials in a large number of state papers.  Here are a few snippets:

With Michigan facing yet another budget crisis, Gov. Jennifer Granholm and lawmakers should finally adjust the Department of Corrections operational costs and policies to fit economic reality.  Recent measures taken to reduce costs, while helpful, fall short of the bold steps necessary to truly reform this very expensive system.

Michigan has more prisoners, incarcerates them longer and spends more to confine them than any other Great Lakes state.   The state faces an estimated $265 million budget deficit this fiscal year and a whopping $1.5 billion deficit next year....  

But as Michigan's corrections costs have escalated, numerous proposals to reduce them have been ignored. And calls for comprehensive reform have gone nowhere, too. This month the Justice Center at the Council of State Governments is expected to weigh in on steps toward more effective and affordable crime fighting. Certainly, some things already recommended will be cited.

Michigan has more prisoners, incarcerates them longer and spends more to confine them than any other Great Lakes state. Michigan has some 50,000 prisoners and spends an average of $34,000 per inmate, the bulk of which is tied to administrative costs. More than a third of all state employees -- more than 17,000 people -- work for the Corrections Department....

Like other states also facing cost pressures, Michigan needs to pursue less expensive but safe alternatives to imprisonment for some nonviolent offenders. In addition, the price tag for providing health care to inmates must be addressed among soaring administrative costs. The parole process, which has seen a decreasing number of prisoners paroled in the last few years, deserves attention along with re-examining sentencing guidelines.

State resources must be targeted to ensure that they are used in addressing the risks and needs of those who pose the greatest threat of re-offending.  A pilot project was funded last year that finally steers the mentally ill to treatment instead of prison.  Taxpayers need Granholm and legislators, who understand the issues involved in transforming the prison system, to show the political will to do what is necessary.  Only that will bring meaningful change and cost-savings, in corrections and elsewhere.

January 9, 2009 in Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Ninth Circuit rejects variance based on fast-track disparity

The Ninth Circuit has issued a significant ruling that rejects fast-track disparity as the basis for a variance in US v. Gonzalez-Zotelo, No. 08-50010 (9th Cir. Jan. 8, 2009) (available here).  Here is how the opinion starts:

The government appeals the 30-month sentence the district court imposed on Juan Gonzalez-Zotelo after his conviction for being a deported alien found in the United States in violation of 8 U.S.C. § 1326.  The U.S. Attorney’s Office did not offer Gonzalez-Zotelo a fast-track plea bargain because of his prior conviction for lewd and lascivious acts with a child.  The district court nonetheless gave Gonzalez-Zotelo the same sentence given earlier that day to a fast-track defendant with armed robbery priors, to promote “consistency.”  Because the district court erred when it imposed a lower sentence on Gonzalez-Zotelo based solely on what it misperceived to be unwarranted sentencing disparity, we vacate the sentence and remand for re-sentencing.  Under our cases, the disparity in question is indeed warranted, because it is justified by Congress’s approval of fast-track plea bargaining programs. This conclusion is not undermined by Kimbrough v. United States, which allows judges to disagree with Guidelines sentencing policy, not with congressional sentencing policy.

The Ninth Circuit opinion notes that its work in Gonzalez-Zotelo is in accord with opinions from the Fifth and Eleventh Circuits, but in tension with an opinion from the First Circuit.

January 9, 2009 in Booker in the Circuits | Permalink | Comments (5) | TrackBack

Fourth Circuit finds federal sex offender civil commitment law unconstitutional

As reported here at How Appealing, "a unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit [Thursday] declared unconstitutional ... a federal statute intended to allow the federal government to place in indefinite civil commitment 'sexually dangerous' persons who have completed serving their federal prison sentences."   Here is a snippet from the start of US v. Comstock, No. 07-7671 (4th Cir. Jan. 8, 2009) (available here):

After carefully considering the Government’s arguments, we conclude, for the reasons set forth below, that § 4248 does indeed lie beyond the scope of Congress’s authority.  The Constitution does not empower the federal government to confine a person solely because of asserted "sexual dangerousness" when the Government need not allege (let alone prove) that this "dangerousness" violates any federal law. 

Eugene Volokh and Ilya Somin and Corey Yung all have extended and very thoughtful comments on the Comstock ruling.  I share their collective instinct that this could end up before the Supreme Court.

January 9, 2009 in Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

January 8, 2009

"Death penalty for white-collar criminals?"

The title of this post is the title of this newspaper commentary, which is an (unsurprising?) response to the Madoff mess.  Here are snippets:

We rationalize capital punishment by claiming that the fear of death is an excellent deterrent and a fitting punishment for cases of extreme harm to an individual (murder) or a community (sex offenders).  Rarely has the fear of the death penalty deterred a single crime of passion or the flawed anti-social criminal.  To be a deterrent, potential criminals need time to weigh the crime against the penalty and some level of native intelligence to understand that death by lethal injection or the electric chair is very likely if they commit the crime.

Ethical and religious considerations aside, perhaps the death penalty should not be reserved only for violent physical crime but as punishment for extreme economic harm, to white-collar crime such as embezzlement, fraud, or the conspiracies of silence that made so many accessories to Madoff’s Ponzi scheme, and the corporate collapses that have cost us nearly a trillion dollars so far.  I tend to think that Madoff would never have stolen so much money from so many people if the penalty was death.

As internationally minded readers likely know, the Chinese use the death penalty this way.  Though I doubt the US will be following China's lead here anytime soon, this commentary provides a useful reminder of how easy and common it is for persons to want to respond to one extreme crime with a proposal for more extreme punishment schemes.

January 8, 2009 in Death Penalty Reforms, White-collar sentencing | Permalink | Comments (6) | TrackBack

Notable Ohio Supreme Court ruling on constitutionality of "blended" juve sentences

As detailed in this official press release, today the Ohio Supreme Court issued a notable discussion on the constitutionality of the state's use of "blended" sentences for juvenile offenders convicted of serious crimes.  Here are the basics:

The Supreme Court of Ohio ruled today that in cases where a juvenile is charged as a “serious youthful offender,” a section of state law authorizing a juvenile judge, rather than a jury, to consider certain factors in determining whether to impose a “blended” juvenile and adult sentence does not violate the defendant’s jury trial rights under the U.S. or Ohio constitutions.

In a 7-0 decision authored by Justice Paul E. Pfeifer, the Court also held that, in serious youthful offender cases where sentencing took place prior to this Court’s 2006 decision in State v. Foster, constitutional jury trial rights do not apply to findings made by a juvenile court under Ohio’s adult felony sentencing statutes in imposing the adult portion of a blended sentence.

Under R.C. 2152.13, an Ohio juvenile judge sentencing a “serious youthful offender” (a minor convicted of an offense that would constitute a violent felony if committed by an adult) is authorized to make factual findings to determine whether the defendant should receive a “blended” sentence that includes not only a normal juvenile sentence but also a stayed term of adult imprisonment....

Writing for the Court in today’s decision, Justice Pfeifer pointed to the U.S. Supreme Court’s ruling in McKeiver v. Pennsylvania (1971) and this Court’s holding in In re Agler (1969) that because the fundamental objectives of juvenile proceedings are different than those of an adult criminal prosecution, juvenile offenders do not have a constitutional right to have their cases decided by a jury. He noted, however, that because juveniles like D.H. who are charged under Ohio’s serious youthful offender statute face the potential imposition of an adult sentence, this case differed in an important respect from the cases of the juveniles in McKeiver and Agler, and thus merited separate consideration.

By giving minors charged as serious youthful offenders the right to have their guilt or innocence determined by a jury, but vesting juvenile judges with discretion to impose an appropriate sentence, Justice Pfeifer found that Ohio’s statutory scheme balances the due process rights of defendants with the state’s strong public interest in rehabilitating delinquent children.

The State v. D.H., No. 2009-Ohio-9, can be accessed at this link.  Because Ohio's "blended" sentencing law is a unique creation, I am not sure this case had broad enough appeal to garner Supreme Court attention if DH were to appeal.  Nevertheless, these are really interesting constitutional issues that ought to interest not only sentencing fans, but also anyone concerned about juvenile justice. 

January 8, 2009 in Blakely in the States | Permalink | Comments (0) | TrackBack

Does Cass Sunstein really think capital punishment may be morally required?

The Washington Post reports here on another prominent law professor about to go from a faculty salary to a government salary:

President-elect Barack Obama will name Cass R. Sunstein, a close friend and one of the nation's top constitutional lawyers, to a senior-level post in charge of government regulation, a transition official said. Sunstein, a Harvard University law professor who grew close to Obama during their years at the University of Chicago, will become the administrator of the Office of Information and Regulatory Affairs.

Obama talked on the campaign trail about the need to revamp the nation's regulatory structure, especially in housing and finance, areas in which lapses contributed to the current economic crisis. In his new position, Sunstein will oversee reform of regulations, seeking to find smarter approaches and better results in health, environment and other domestic areas, a transition source said.

The office Sunstein will head is part of the Office of Management and Budget and is responsible for reviewing draft regulations and overseeing the implementation of government-wide policies aimed at making federal agencies more efficient, according to the mission statement on its Web site.

As first noted here, Sunstein has recently argued (along with Adrian Vermeule), in an article entitled "Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs," that governments may have an obligationto use the death penalty if it can deter killings and save innocent lives.  I have a feeling that Sunstein considered this article to be academic musings not a policy paper for the management of the federal criminal justice system.  Nevertheless, since I would like to see the feds take over the administration of capital punishment (and take it away from the states), I am strangely hopeful that Sunstein might be seriously committed to trying to do something new and bold in the arena of capital punishment.

Some related posts on Sunstein's paper and death penalty deterrence:

January 8, 2009 in Criminal justice in the Obama Administration | Permalink | Comments (12) | TrackBack

January 7, 2009

"Sask man whose daughters froze to death to face aboriginal sentencing circle"

The title of this post is the title of this new article from The Canadian Press.  Here are some of the intriguing specifics:

A Saskatchewan father whose two young daughters froze to death when he took them out in a numbing blizzard will face an aboriginal sentencing circle, but Christopher Pauchay's lawyer says that doesn't mean he'll get off lightly.

Provincial court Judge Barry Morgan on Wednesday approved Pauchay's bid to have the aboriginal community help determine a punishment. "It's not going to be a way to get out of jail free. It's just a way to have more detail and more insight into this particular offender," defence lawyer Ron Piche told The Canadian Press after reading Morgan's decision....  

Pauchay, 25, pleaded guilty in November to criminal negligence causing death.  The single charge covered the deaths of both children and Pauchay's failure "to provide protection from exposure to the elements" in temperatures that would have felt like -50 C with the wind chill.  It was nearly a year ago when he left his home on the Yellow Quill First Nation with his daughters Kaydance, 3, and Santana, 1.

The Court heard that Pauchay had been drinking and didn't remember much about that night.  He did recall that one of his girls was hurt and he needed to get help.  But once outside, the children became separated from their father.  Pauchay eventually made it to a neighbour's house in the early morning of Jan. 29 and was taken to hospital suffering from severe frostbite and hypothermia. Eight hours later, when he was able to speak, he asked about his children.... 

Piche, who believes a conditional sentence is appropriate, said Pauchay "has suffered and will suffer for the rest of his life."  He also said Pauchay told him that he's not afraid of going to jail. "He's living his own punishment on a daily basis."  However, Piche also noted that Morgan will have the final say on what is an appropriate sentence.

A sentencing circle is usually made up of members of the community, the victim, the victim's family and elders. Everyone has a chance to talk about the crime and to suggest punishment that might be appropriate. A judge still imposes the sentence and can ignore the recommendations of the sentencing circle.

Crown prosecutor Marylynne Beaton, who opposed the sentencing circle, could not immediately be reached for comment. However, she had told court that the crime was far too serious for a sentencing circle, usually reserved for criminals who won't face more than two years behind bars. The Crown is seeking a sentence of 2 1/2 to five years in prison.

January 7, 2009 in Criminal Sentences Alternatives | Permalink | Comments (5) | TrackBack

Any early predictions on Jeff Skilling's likely sentence the second time around?

As noted here, the Fifth Circuit ordered former Enron CEO Jeff Skilling resentenced because District Judge Sim Lake made a guideline calculation error.  But the Fifth Circuit said little else about Skilling's original sentence, which may ensure that the outcome (and even the terms of debate) for his resentencing are uncertain for the time being. This Bloomberg news reporthas this notable discussion of resentencing possibilities:

If that’s the only basis of resentencing, it would be a modest reduction,” said Kirby Behre, a partner at Paul Hastings Janofsky & Walker in Washington and co-author of “Federal Sentencing for Business Crimes.” “It might be more than modest, but it’s not going to get him down to 10 or 12 years.”

In the 2000 guidelines under which Skilling was sentenced, the financial-institution factor brought his offense level to 40 from 36 and his range to between 292 and 365 months in prison.  Lake imposed 292 months, or 24 years and four months. Dropping the offense level back to 36 brings a range of 188 to 235 months, or 15 2/3 years to 19 years and seven months....

Because the Supreme Court made the guidelines voluntary in January 2005, in a case called U.S. v. Booker, Skilling may be given the same sentence...

Other experts said the judge may reduce Skilling’s sentence to the lower range....  Lake is likely to use the guidelines again when he resentences Skilling, said Paul Cassell, a former federal judge who’s now a law professor at the University of Utah in Salt Lake City. “Most federal judges in the system follow the guidelines, particularly in a case where they’ve used them before,” Cassell said in a phone interview.

For a host or reasons, I am disinclined to make any predictions about resentencing.  In addition, because the Skilling legal team clearly plans to continue appealing his convictions, it is even unclear whether resentencing may be only a few months away or still years away.  Whatever the practical particulars, I would be eager to here reader thoughts on what might happen next on the sentencing side of the Skilling case.

January 7, 2009 | Permalink | Comments (3) | TrackBack

Notable crack reduction opinion from the Second Circuit

Virtually every day now we get a new opinion from the circuit courts about the legal rules surrounding federal sentence reductions pursuant to 18 U.S.C. § 3582(c)(2).  The latest such decision is from the Second Circuit in US v. v. Williams (Lewis), No. 08-1065 (2d Cir. Jan. 7, 2009) (available here).  Here is the court's summary of its work in this case:

Appellant appeals from a denial of a motion seeking a reduced sentence pursuant to 18 U.S.C. § 3582(c)(2) following the amendment to the Sentencing Guidelines applicable to crack cocaine violations. In denying the motion for resentencing, the District Court for the Northern District of New York (Mordue, J.), found that because Appellant’s original sentence was a non- Guidelines sentence resulting from a departure from the statutory minimum sentence pursuant to 18 U.S.C. § 3553(e), he was not eligible for a reduced sentence under the amended Guidelines.  We agree with the district court’s interpretation of § 3582(c)(2) and find that Appellant is not eligible for a new sentence under the revised Guidelines because the Guidelines provision underlying the sentence that was finally imposed on the Appellant was not a provision affected by the subsequent amendment to the Guidelines. AFFIRMED.

January 7, 2009 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (1) | TrackBack

Senator Specter refines the case against AG-nominee Holder

As detailed in this New York Times article and this BLT post, Senator Arlen Specter has started to define the terms of the debate for next week's confirmation hearing for Attorney General Nominee Eric Holder.  Here are the basics from The BLT:

Sen. Arlen Specter, the ranking Republican on the Senate Judiciary Committee, has begun laying out the questions he plans to ask Eric Holder Jr. next week during Holder’s confirmation hearing to be attorney general.

In a speech on the Senate floor Tuesday, Specter (R-Pa.) said he plans to focus his inquiry on three areas: the pardon of fugitive commodities trader Marc Rich; the decision by Holder’s then-boss Attorney General Janet Reno not to appoint a special prosecutor to look into Vice President Al Gore’s 1996 fundraising activities; and the clemency granted to a group of Puerto Rican nationalists.

“All of these matters relate to judgment,” Specter said. “They relate to whether Mr. Holder had the kind of resoluteness displayed by Attorney General Griffin Bell, by Attorney General Elliot Richardson, to say ‘no’ to their superiors.” Specter also said he plans to ask Holder his views on journalists’ privilege, the Bush administration’s surveillance policies, and the Justice Department’s evolving view of corporations’ attorney-client privilege.

The fact that two of the three top-shelf concerns involve clemency issues perhaps provides more support for my view that the entire US Pardon Office ought to be completely removed from the Department of Justice.  (Specifically, I would like to see the Pardon Office relocated as a department in the US Sentencing Commission.) 

Also, it is telling and disappointing that Senator Specter does not have on his question list a number of other critical practical questions about the federal criminal justices system.  Indeed, I wonder if Holder will get any questions on, e.g., the post-Booker sentencing system or sex offender prosecutions in light of the new federal Adam Walsh Act or crime victims rights in light of the new federal Crime Victims Rights orfederal habeas a decade after the AEDPA or the federal death penalty in light of increased capital prosecutions during the Bush Administration or federal reentry efforts in light of the new Second Chance Act.

Some prior posts on the Obama transition and the Holder pick:

January 7, 2009 in Criminal justice in the Obama Administration | Permalink | Comments (18) | TrackBack

Seeking guidance from a higher authority on Bible-influenced capital sentencing

I have previously noted in prior posts how lower courts have split over the consequences of juror consideration of biblical passages during the penalty phase of a capital trial.  Indeed, as noted here, nearly three years ago, Karl Keys of CDWsuggested that it is "past time time for SCOTUS action" on this issue.  Now, thanks to a helpful reader, I have learned that a new cert petition (available for download below) presents the Justices with a new opportunity to take up this issue.

The new petition involves a Texas case, Oliver v. Quarterman, that has already worked its way through federal habeas. Here are the first two questions presented in the Oliver petition:

1. Does juror consultation of the Bible during sentencing deliberations deprive a defendant of his federal constitutional rights?

2.When evaluating possible prejudice to a defendant resulting from juror consultation of the Bible during sentencing deliberations, what standard of proof should apply, or should there be an irrebuttable presumption of prejudice?

Download Final Oliver Petition

Some related prior posts:

January 7, 2009 in Death Penalty Reforms | Permalink | Comments (24) | TrackBack

January 6, 2009

Might the US Sentencing Commission have any notable guideline amendments in the works?

As detailed in this official announcement, "a public meeting of the [U.S. Sentencing] Commission is scheduled for Tuesday, January 13, 2009, at 11:30 a.m."  And, on the official agenda is "Possible Votes to Publish Guideline Amendments and Issues for Comment." 

I have not heard any advance buzz about any major guideline amendments in the works.  But, as eagle-eyed readers may have learned from this post linking to this recent this fascinating Q&A interview,  now-former US Sentencing Commissioner John Steer has stated that, before he left the commission, he "provided my colleagues with a draft amendment to accomplish" the objective of ending the requirement that acquitted conduct be used in determining the guideline range. 

I would be quite excited (and somewhat surprised) if the USSC has an amendment dealing with acquitted conduct in the works.  But, in these days of transition and lots of inside-the-beltway changes, perhaps this aspect or some other notable aspects of the existing federal sentencing guidelines might be subject to amendment.

January 6, 2009 in Federal Sentencing Guidelines | Permalink | Comments (3) | TrackBack

Enron CEO Jeff Skilling's convictions affirmed, but resentencing ordered

The AP has this early report on today's huge white-collar sentencing news:

An appeals court has upheld former Enron Corp. CEO Jeff Skilling's convictions for his role in the energy giant's collapse but orders that he be resentenced.  A three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans on Tuesday denied Skilling's request that his convictions be overturned because they were based on an incorrect legal theory.

But the judges, in their 105-page opinion, ordered that Skilling be resentenced. They said U.S. District Judge Sim Lake erred by applying guidelines that resulted in a 24-year prison term.  Skilling was convicted in May 2006 on 19 counts of fraud, conspiracy, insider trading and lying to auditors for his role in the collapse of Houston-based Enron, once the nation's seventh-largest company.

I will post the opinion once I track it down, and lots of commentary will follow whenever I get the chance to see exactly what the long opinion says.

UPDATE: The full opinion in US v. Skilling is available at this link.  The sentencing discussion does not start until page 97, and here is how the sentencing section begins:

Skilling challenges various aspects of his sentence. In particular, he disputes the district court’s application of the Sentencing Guidelines and the reasonableness of his sentence under 18 U.S.C. § 3553(a).  Because we decide that the court committed error in applying the Guidelines, we do not reach the § 3553(a) requirements, as proper calculation of the Guidelines range is antecedent to a reasonableness challenge.  See Gall v. United States, 128 S. Ct. 586, 596-97 (2007).

January 6, 2009 | Permalink | Comments (5) | TrackBack

Fourth Circuit rules guidelines limit reduction for crack retroactivity

Ruling in accord with a recent Tenth Circuit ruling concerning Booker's inapplicability to crack retroactivity proceedings (blogged here), the Fourth Circuit yesterday US v. Dunphy, No. 08-6919 (4th Cir. Dec. 5, 2008) (available here), ruling that there is a limit on the extent of the sentence reduction that defendants can get in crack retroactivity proceedings.  The Dunphy ruling is thorough and thoughtful, and a long opinion is quickly summarized by the ruling's conclusion:

When a sentence is within the guidelines applicable at the time of the original sentencing, in an 18 U.S.C § 3582(c) resentencing hearing, a district judge is not authorized to reduce a defendant’s sentence below the amended guideline range.

January 6, 2009 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (1) | TrackBack

"The New Second Amendment: A Bark Worse Than Its Right"

I just noticed this notable new commentary, with the same title of this post, by UCLA Law Prof Adam Winkler noting the consistent pattern of lower court rulings after Heller.  Here are snippets:

As many legal scholars predicted, the Supreme Court's [Heller] decision led to a tidal wave of Second Amendment challenges to gun control. Every person charged with a gun crime saw the Supreme Court's decision as a Get Out of Jail Free Card.

To date, the lower federal courts have ruled in over 60 different cases on the constitutionality of a wide variety of gun control laws. There have been suits against laws banning possession of firearms by felons, drug addicts, illegal aliens, and individuals convicted of domestic violence misdemeanors. The courts have ruled on the constitutionality of laws prohibiting particular types of weapons, including sawed-off shotguns and machine guns, and specific weapons attachments. Defendants have challenged laws barring guns in school zones and post offices, and laws outlawing "straw" purchases, the carrying of concealed weapons, possession of an unregistered firearm, and particular types of ammunition.

The courts have upheld every one of these laws. Since Heller, its Gun Control: 60, Individual Right: 0.

I am very pleased someone else is noticing that lower courts so have have been consistently willing and eager to uphold any and every modern gun control law despite all the sturm und drang about the Heller ruling.  However, I remain disappointed that all the interest groups, politicians and academics so focused on Heller as it was making it was to the Supreme Court seem largely disinterested in seriously working through all of its important practical implications. 

As detailed here and here, well over 70 interest groups had the time, money and energy to file amicus briefs in an effort to influence the Supreme Court's work in Heller.  To my knowledge, few if any of these groups have invested one whit of time, money and energy toward helping a variety of federal defendants who now have a variety of really good arguments that their charges or sentences are now constitutional questionable after Heller.

Some related Second Amendment posts:

January 6, 2009 in Second Amendment issues | Permalink | Comments (0) | TrackBack

Madoff mess raises interesting white-collar bail issues

The money mess created by Bernard Madoff continues to raise interesting legal issues for white-collar crime fans.  Specifically, as detailed in this new New York Law Journal piece, the standards for pre-trial bail are now being tested through the Madoff case:

The decision by Bernard Madoff and his wife to ship jewelry and other valuables to family and friends may land him behind bars sooner rather than later.  Assistant U.S. Attorney Marc Litt told a magistrate judge yesterday that Mr. Madoff and his wife Ruth mailed in excess of $1 million in valuables late last month despite a court order in a related civil case requiring the accused mastermind of a multi-billion dollar Ponzi scheme not to dissipate assets....

Defense attorney Ira Sorkin of Dickstein Shapiro said the mailing of the valuables, which included watches, a pair of cuff links and even a $200 pair of mittens, had nothing to do with allowing Mr. Madoff to remain free on bail.

At issue was the Bail Reform Act, 18 U.S.C. §§3141-3150.  Mr. Sorkin said the act contemplates only the risk of flight and potential danger to the community as factors in deciding whether a defendant should be allowed to stay at liberty pending trial.  The public, he said, is in no danger if his client stays out of jail until the case is resolved....

On Dec. 18. Mr. Madoff was ordered by Southern District Judge Louis Stanton not to dissipate assets in an action brought against him and his firm by the Securities and Exchange Commission.  Mr. Litt said the shipment amounts to obstruction of justice.

But Mr. Sorkin said Mr. Litt's position on the Bail Reform Act would gut the statute. "If you buy into his argument, then every defendant brought before this court should be incarcerated," he said, adding that the Bail Reform Act "does not cover dissipation" of assets.

Mr. Litt countered by citing legislative history - that the Senate Judiciary Committee intended to adopt a "broader definition" of community safety in shaping the reform act.... He also said Mr. Madoff remains a flight risk and that is it "simply impractical for the government to go around and collect anything of value." "The most significant thing is, in the face of a direct and clear order of which the defendant was aware, he violated that order," Mr. Litt said.

Some recent related Madoff posts:

January 6, 2009 in White-collar sentencing | Permalink | Comments (1) | TrackBack

January 5, 2009

What might 2009 have in store for . . . drug sentencing law and policy?

Continuing the 2009 "what's in store" series, let's turn to drug sentencing law and policy.  In this area, the social attitudes and legal approaches adopted by the new Obama Administration are likely to be critical.  Even though the majority of drug crimes are handled at the state level, how federal authorities set priorities and fund initiatives will set the tone.  Notably, the Obama transition site has these statements about the new Administration's priorities in this arena: 

Despite these seemingly progressive sentiments, as noted in this post, drug policy reformers we not too excited about the nomination of Eric Holder for Attorney General.  In addition, as noted in this post, there are reasons to be concerned that the Obama Administration is unlikely to change swiftly or radically the nation's commitment to the "war on drugs."   And yet, with today's news that academics have been nominated to be the next Solicitor General and to head the Office of Legal Counsel, maybe we could see some notable developments in this arena.

Some related posts on drug reform and the new Administration:

Other posts so far in the 2009 "what's in store" series:

January 5, 2009 in Criminal justice in the Obama Administration | Permalink | Comments (2) | TrackBack

Will we get more commutations from President Bush in the weeks ahead?

When it comes to executive clemency exercised by the President, pardon grants tend to generate the most headlines, whether it is President Ford's pardon for Nixon or President Clinton's pardon for Rich or President Bush's pardon (and take back efforts) for Toussie.  But, especially in our modern of extremely long federal sentences, I sure wish commutations would get move love and attention.  Helpfully, as evidenced by this column, Debra Saunders is with me on this front:

My fear is that the negative fallout from the Toussie story will prompt Mr. Bush to issue fewer pardons and commutations.  Mr. Bush has been too stingy with this power, even as the foolish inflexibility of federal mandatory minimum sentences has created many worthy recipients.  Among them: Clarence Aaron, who is serving a life-without-parole sentence for a first-time nonviolent drug offense.  Add Ignacio Ramos and Jose Compean, two Border Patrol agents sentenced to 11 years and 12 years respectively for shooting and wounding a fleeing drug smuggler in 2005 and covering up the incident.

What's the difference between Aaron, Ramos and Compean and the individuals who rated a Bush pardon or commutation?  My guys aren't well connected, but they also were not career criminals. Aaron was a college student who made a serious criminal decision — and deserved to serve some prison time.  Ramos and Compean covered up the questionable shooting of a fleeing drug smuggler.  Yes, juries found all three men guilty, but juries had no input into their draconian sentences.

Only the president of the United States has the power to right the wrongness of their sentences. Only Mr. Bush can bring justice — for in these cases, a commutation would not bring mercy but justice — to men who have known mindless punishment without leavening proportion.  The outrage is not simply that a well-connected white, white-collar, criminal won a pardon.  It also would be an outrage if Mr. Bush failed to do right by Aaron, an unconnected African-American man serving life for a first-time nonviolent offense, and two Latino Border Patrol agents who, if they did break the law, did so in the heat of the chase, not the cool of a boardroom.

Notably, President Bush has now received some public praise for his most recent commutation.  Specifically, the recent commutation of the prison sentence of Reed Prior generated this two very positive pieces appearing in this Sunday's Des Moines Register:

The second of these pieces is an effective editorial which starts and ends this way:

To those who know Reed Prior, he seemed the last person who would be sentenced to life in federal prison. To those who know George W. Bush's reputation, he seemed the last president who would set Prior free in an act of mercy. Yet, both happened, and the irony reveals injustice not just in one case but in criminal sentencing in general....

In these cases, the criminal-justice system not only missed opportunities to salvage lives, but discarded them. A remarkable group of Iowans from across the business, political and social spectrum saw how such an opportunity was badly missed in Prior's case, and they got George W. Bush to agree.

It's time for members of Congress and state lawmakers to end the harm caused by wrongheaded drug prosecutions and mandatory prison sentences and ensure opportunities to salvage lives are not missed in the future.

Especially because I know of more than a few defendants sitting in federal prison whose cases justify serious clemency consideration, I hope that more commutations will be coming from the White House soon.  I am not holding my breath, but I am going to remain hopeful.  I am also going to urge President-elect Obama to get moving on commutations the minute he takes over this historic power.

January 5, 2009 in Clemency and Pardons | Permalink | Comments (2) | TrackBack

Notable op-ed assails sentencing guidelines based on White acquitted conduct ruling

I was pleased and intrigued to learn from a helpful reader about this potent new op-ed from a local Kentucky paper, headlined "No safety in numbers."  Here are excerpts:

The recent decision by the Sixth Circuit Court of Appeals upholding the 22-year sentence of Roger White, a getaway driver in a bank robbery, is yet another example of why it is time for Congress, and the states, to reconsider the wisdom of sentencing guidelines.....

While determinate guideline sentencing has been praised by many as a cure-all for the problem of recidivism, many others view determinate sentencing as a 20-year mistake which has done nothing more than add to the already over-burdened prison system which in many states, including Kentucky, is teetering on the verge of collapse....

Although no one wants to appear soft on crime, we have reached a point in history where we need to sit down and reconsider whether this 20-year experiment in determinate sentencing was a mistake. It is time to sit down and begin a new dialogue on sentencing, a dialogue which includes reestablishment of parole as an option to reward those who decide to use their time in prison as an opportunity for rehabilitation.

A year from now, few will remember or care about the 22-year sentence handed to Roger White as a result of the federal sentencing guidelines. In fact, with so many other problems facing our communities today, we have a justifiable excuse for not doing anything to correct the problems of determinate sentencing on the over-burdened state and federal prison systems.

However, what we need to understand is that when our prison systems finally collapse through over-crowding, a collapse which will come sooner rather than later, we will no longer have the luxury of an open dialogue aimed toward a solution. Instead, we will be left with a crisis of monumental proportions which will leave few options of how and where to incarcerate those who we truly need to be incarcerated for the safety of our communities.

Some related posts about the White case:

January 5, 2009 in Scope of Imprisonment | Permalink | Comments (1) | TrackBack

PA Gov. Rendell calling to end parole for repeat violent offenders

This Philapelphia Inquirer piece, headlined "Rendell: Eliminate parole for repeat violent offenders," reports on the latest crime and punishment news from the Keystone State:

After a year marked by horrific crimes committed by repeat violent offenders, Gov. Rendell called yesterday for legislation to keep them locked up longer. "The parole system simply doesn't work for these violent individuals who use deadly weapons," Rendell told reporters yesterday at the Park Hyatt Philadelphia at the Bellevue.

"It works for nonviolent offenders," he said. "In 2007, 95 percent of the state's nonviolent 31,000 parolees were not rearrested. "But not for this dangerous group of individuals . . . who learn to game the system."

Rendell's effort would not change the sentencing guidelines that judges employ or the factors that parole boards can consider. Instead, he would require judges to sentence repeat violent offenders to specific, fixed terms, instead of ranges, in effect eliminating any opportunity for early release.

As informed sentencing fans know, the federal sentencing system and a number of state systems have eliminated parole for all offenders as part of modern structured sentencing reforms.  In addition, the current draft of the new MPC sentencing provisions calls for a complete elimination of systems of parole.  Against this backdrop, I like Governor Rendell's more nuanced approach here, which usefully seeks to distinguish for parole purposes between "repeat violent offenders" and all other offenders.

Of course, as in all sentencing proposals, the devil is in the details.  Some defendants get sentenced as "repeat violent offenders" in the federal sentencing for illegally possessing a firearm after having felony record based on relatively minor state assault or drug charges. 

January 5, 2009 in Sentences Reconsidered | Permalink | Comments (8) | TrackBack

Any new thoughts about criminal justice as Prez-elect Obama fills out his Justice league?

As noted in this recent post, President-elect Obama today officially tapped Harvard Law Dean Elena Kagan to be the next Solicitor General.  In addition, as detailed in this official press release, the Obama team has also today named a number of other persons to fill key spots in the Justice Department:

Today, President-elect Barack Obama announced that he intends to nominate the following individuals for key posts at the United States Department of Justice: David Ogden, Deputy Attorney General; Elena Kagan, Solicitor General; Tom Perrelli, Associate Attorney General; and Dawn Johnsen, Assistant Attorney General for the Office of Legal Counsel.

President-elect Obama said, “These individuals bring the integrity, depth of experience and tenacity that the Department of Justice demands in these uncertain times. I have the fullest confidence that they will ensure that the Department of Justice once again fulfills its highest purpose: to uphold the Constitution and protect the American people. I look forward to working with them in the months and years ahead.”

I know these impressive folks only by reputation, but those reputations bode well for anyone (like me) hoping that the "change" mantra becomes a serious reality in the federal administration of justice.  Relatedly, regular readers may recall the name Dawn Johnsen from this post, which noted that she authored this terrific chapter from a publication by the Center for American Progress Action Fund, entitled "Change for America: A Progressive Blueprint for the 44th President."  That chapter included these important sentiments:

Although crime is largely a state and local responsibility, federal leadership can be enormously influential beyond the federal system through assistance that fosters innovation, supports research, and shares information about “what works” in combating crime....

Incarceration in the United States is an issue crying out for DOJ attention.  After holding steady for most of the 20th century, the federal prison population increased 10-fold in the last 25 years. The United States at all levels of government incarcerates more of its population than any other nation in the world, both in terms of the incarceration rate and in absolute numbers....

The costs, both financial and social, are astronomical.  DOJ should undertake affirmative efforts to decrease prison populations without endangering public safety.  Again, states can provide useful models for each other and for the federal government.  In response especially to budget crises, some states have successfully reduced incarceration rates without increasing crime.  DOJ should study, disseminate, and implement best practices, which include increased and improved use of drug courts and treatment alternatives to incarceration....

I sincerely hope that AAG-nominee Johnsen sustains a fierce commitment to deal with mass incarceration in the new Administration, and I also hope these other nominees share this perspective. 

With these appointments and modern economic realities and various notable jurisprudential doings, I am starting to become (dangerously?) optimistic that we could be on the verge of a new criminal justice era in the United States.  Perhaps readers can/should try to burst my optimism bubble so that I do not start expecting too much.

Some recent related posts:

January 5, 2009 in Criminal justice in the Obama Administration | Permalink | Comments (6) | TrackBack

Circuits ring in 2009 with some sex and death

The first two 2009 sentencing related opinions I noticed today were, perhaps fittingly, dealing with sex offender sentencing and the administration of capital punishment.  I predict that these will be two of the hottest topics in sentencing law and policy for 2009, so it is notable to see the sentencing year get off to this kind of jurisprudential start.

Specifically, the Seventh Circuit has an intricate little child porn sentencing opinion today in US v. Osborne, No. 08-1176 (7th Cir. Jan 5, 2009) (available here), and the Eleventh Circuit has an elaborate lengthy death penalty decision today in Wellons v. Hall, No. 07-13086 (11th Cir. Jan 5, 2009) (available here). 

Some recent related posts:

UPDATE:  The Fourth Circuit also had a lengthy death penalty decision to ring in the new year in Larry v. Branker, No. 07-7 (4th Cir. Jan 5, 2009) (available here).  This opinion includes and long discussion of the application of mental retardation standards in the wake of the Supreme Court's ruling in Atkins making those with mental retardation ineligible for the death penalty.

January 5, 2009 | Permalink | Comments (1) | TrackBack

HLS Dean Elena Kagan to be nominated for US Solicitor General

Thanks to my status as an alum of the Harvard Law School, I just got big news via a "personal" e-mail from current HLS Dean Elena Kagan.  Here is the first part of the text of the e-mail:

I am writing to all of you — the community of students, faculty, staff, and alumni of Harvard Law School — to let you know that today President-elect Barack Obama will announce his intention to nominate me to serve as Solicitor General of the United States.  If confirmed by the Senate, I will resign the deanship of the Law School and take a leave of absence from the faculty.

I have accepted this nomination because it offers me the opportunity, working under the leadership of the President-elect and his nominee for Attorney General, Eric Holder, to help advance this nation's commitment to the rule of law at what I think is a critical time in our history. I am honored and grateful, awestruck and excited, to be asked to contribute to this most important endeavor. And perhaps, for me, it adds a special touch of sweetness to the occasion that the person making the nomination, in whose capacity for greatness I deeply believe, is himself a member of the group to which I am writing.

Some related posts:

January 5, 2009 in Who Sentences? | Permalink | Comments (2) | TrackBack

January 4, 2009

How much can and will the "tenth justice" influence sentencing jurisprudence?

I have not yet done a "what might be in store" post about sentencing jurisprudence because there are so many uncertain variables.  For example, right now there is the pending Ice Sixth Amendment case awaiting a decision from the Supreme Court (basics here), the latest en banc acquitted conduct federal sentencing ruling from the Sixth Circuit (basics here), and lots cases involving important constitutional challenges to long state prison sentences (see recent examples from Califorinia and Florida and Georgia).

Against this backdrop, I was especially intrigued to see this new Bloomberg reportindicating that two notable academics are on the Obama team's short list for Solicitor General:

The first female deans of the Harvard and Stanford law schools are the top candidates to serve as Barack Obama’s voice at the U.S. Supreme Court, according to people familiar with the selection process. Harvard Law School Dean Elena Kagan, 48, and former Stanford Law School Dean Kathleen Sullivan, 53, are the two leading contenders for the position of solicitor general, a position informally known as the “tenth justice.”

For either, the job ultimately might be a step toward a seat on the Supreme Court itself.  The next solicitor general will preside over an almost-certain shift of the federal government’s position before the high court on terrorism, product-liability lawsuits and other issues.  No woman has ever served as solicitor general on a permanent basis.

“They already have to be on any list of potential Supreme Court nominations for the administration,” said Jeffrey Fisher, a Stanford law professor who argues before the high court. “Having the experience of being solicitor general would only accentuate their portfolio.”

I have great repsect for both Kagan and Sullivan, in part because both have amazing reputations as both academics and as administrators.  In my view, President-elect Obama could not go wrong with either choice (and this nation is long overdue for a female lawyer to be nominated and confirmed as SG).

Responding to the Bloomberg report, I was going to speculate in this post about what Kagan and Sullivan might think about Blakely and Bookerand acquitted conduct and the Eighth Amendment.  But, as I was thinking these matters, a broader question came to mind: how much can and will a new Solicitor General impact constitutional doctrine and federal policies in the sentencing arena? 

Let me make this inquiry concrete with respect to some of the issues flagged above: if a new SG believes that acquitted conduct enhancements are problematic, could and should she urge the Supreme Court to take up an acquitted conduct case and push the Justices to move the existing jurisprudence in favor of criminal defendant?  How about if the new SG finds long mandatory minimum sentences for juvenile or non-violent offenders to be troublesome, could and should she urge the Supreme Court to reconsider some of its old precedents in these area?

Because I have never worked in the SG's office, I have no sense of how much a new SG can or should play an active role in seeking to push the Supreme Court's jurisdiction in new or revised directions.  I hope readers with some experience or thoughts on this front will feel free to share their thoughts in the comments.

January 4, 2009 in Who Sentences? | Permalink | Comments (7) | TrackBack

Effective op-ed about dealing with prison costs coming due

Anthony Barkow, who is the executive director of NYU's terrific Center on the Administration of Criminal Law, has an important op-ed today in the Washington Post.  This op-ed highlights the challenges that Virginia Governor Tim Kaine and so many other governors are now facing as their prison costs continue to expand while state resources continue to contract.  Here are excerpts:

Virginia is facing a fiscal emergency.  The commonwealth faces a nearly $3 billion shortfall this year.  At the same time, the growth of Virginia's prison budget has dramatically outpaced other spending items over the past decade. Spending on incarceration consumes more than $1 billion each year. In response to the state's fiscal crisis, and in recognition of the explosion in prison spending, Gov. Tim Kaine recently proposed [front page, Dec. 18] releasing some prisoners 90 days before the end of their sentences.

The governor's proposal is limited to nonviolent offenders who have been model inmates, and merely enlarges the period of early release to 90 days from the present 30 days.... But state Attorney General Bob McDonnell, who is running for governor,. has criticized Kaine's idea through his spokesman.

But Kaine has it exactly right.  Tired, tough-on-crime rhetoric says that all offenders should be locked up for as long as possible.  But this approach simply doesn't work as a method of governance.... The result is burgeoning prison populations and spiking prison costs....

But now, the economic downturn has brought criminal justice expenditures to a collision with reality.  Sometimes, crisis is opportunity.  Virginia can't blindly devote money to incarceration.  It needs to differentiate between those who deserve and need to remain in jail, such as violent offenders, and those who don't, such as nonviolent offenders who pose no danger to society and who will serve or may have already served substantial prison time.

After all, when resources are limited, spending money to incarcerate the nonviolent, non-dangerous offender means less money to spend on other priorities. What other priorities should lose funding?  Schools?  Efforts to put more police on the streets?  Bigger cuts in these areas will increase crime....

It takes a brave governor to recognize that sound government sometimes means having the guts to tell people that the criminal justice system has gone too far.  Kaine's critics can use all the tough-on-crime rhetoric they want to try to get elected.  But Kaine actually has to govern.  And with this proposal, he's governing wisely.

This op-ed highlights various political and practical realities that have been the subject of discussion on this blog for years.  I  concur with all that it says, except the for concluding notion that a governor has to be "brave" to tell the truth about criminal justice expenditures.  I do not accept or support the notion that leaders are being "brave" when making responsible public policy decisions. 

Rather than calling Governor Tim Kane brave, I think those politicians who continue to espouse irresponsible tough-on-crime rhetoric should be called out as cowards.  The modern sentencing reform movement was driven in part by a call for "truth in sentencing," and a commitment to truth should extend to all those politician who are eager to talk tough and then ignore the hard economic and social realities that clearly follow such talk.

Some related posts: 

January 4, 2009 in Scope of Imprisonment | Permalink | Comments (7) | TrackBack

The high costs of an aging prison population

The Richmond Times Dispatch has two strong articles in its Sunday edition about the challenges states face in dealing with an aging prison populations.  It also has this remarkable slideshow, which is a must-watch  Here are snippets from this main article, headlined "Growing old behind bars:"

Like the rest of the country, Virginia is coping with a growing number of aging inmates.... In 1999, Virginia had 2,015 prisoners 50 or older.  Today, there are almost 4,700, and by 2011, state officials expect there to be 5,057.

A drop in the number of paroles granted to inmates who remain eligible is a factor in Virginia's increasing number of older inmates. Truth-in-sentencing reforms that in 1995 led to stiffer, no-parole sentences for violent crimes are expected to contribute to Virginia's aging prison population in coming years.

At Deerfield, wheelchairs and walkers line aisles in the secured assisted-living dormitory, where it would be easy to confuse the frail residents with those in nursing homes.... Experts say substance abuse, little or no health care before imprisonment and the stress of living behind bars can leave a 50-year-old inmate physiologically 10 to 15 years older than his chronological age.

In general, older inmates require more supervision and medical and mental-health care, as well as special diets, mobility aids and special housing. Deerfield, Virginia's only prison dedicated to geriatric inmates and inmates with special medical needs, accommodates 1,080 inmates, 90 of them in wheelchairs and 65 percent over the age of 50.

This companion article, headlined "Expenses higher for geriatric prisoners," puts a partial price tag on some of these trends:

According to the [state corrections] department, in the fiscal year that ended June 30, 2007, the annual cost per inmate at the Deerfield Correctional Center was $27,985, compared with $23,246 per capita systemwide and $16,000 to $17,000 a year at medium-security dormitory facilities.

A recent survey of 41 states and the U.S. Bureau of Prisons by Corrections Today found there were almost 125,000 inmates 50 or older, but fewer than 10,000 beds in facilities dedicated to older inmates. The Corrections Today report predicts the nation's older inmate population could increase tenfold in the next decade and the associated health costs could double that.

Some related posts:

January 4, 2009 in Scope of Imprisonment | Permalink | Comments (0) | TrackBack