May 23, 2009
"Ex-Soldier Gets Life Sentence for Iraq Murders"
The title of this post is the headline of this New York Times article reporting the outcome of a high-profile capital prosecution with lots of international and domestic policy components. Here are the basics:
A jury in Kentucky sentenced a 24-year-old former soldier to life in prison without parole on Thursday for raping a 14-year-old Iraqi girl and murdering her, her parents and a younger sister in Iraq.
The verdict spared the defendant, Steven D. Green, death for a crime that prompted Iraqi demands for retribution and raised questions about Army oversight of its combat-stressed forces. After deliberating for just one day, the 12-member jury, sitting in Paducah, Ky., declared itself hung late Thursday afternoon, resulting in the lesser sentence, said Dawn Masden, a spokeswoman for the United States attorney for the Western District of Kentucky, based in Louisville.
The verdict seemed likely to anger Iraqis who had argued that Mr. Green and the other soldiers involved in the murders should have been tried by an Iraqi court and who had asserted that only a death penalty could satisfy the family and fellow villagers.
At least four other soldiers have pleaded guilty or were convicted in military courts for their roles in the rape and murders. While most received long prison terms, none are facing the death penalty, and all will be eligible for parole in 10 years or less.
Mr. Green’s trial was the first capital punishment case tried under a 2000 law allowing federal criminal courts to try crimes committed overseas by former members of the military, military dependents, contractors and other civilians, legal experts said. Mr. Green left the Army, with an honorable discharge on a diagnosis for a personality disorder, just weeks before he was arrested in 2006.
The March 2006 murders in Mahmudiya, 20 miles south of Baghdad, were so bloody that American and Iraqi authorities first thought they were the work of insurgents. The American soldiers were implicated after at least one acknowledged to fellow soldiers a role in the crimes....
On March 11, 2006, after drinking Iraqi whiskey, Private Green and other soldiers manning a checkpoint decided to rape an Iraqi girl who lived nearby, according to testimony. Wearing civilian clothing, the soldiers broke into a house and raped Abeer Qassim Hamza al-Janabi. Soldiers in the group testified that Private Green killed the girl’s parents and a younger sister before raping and then shooting the girl in the head with the family’s own AK-47, which it had kept for self defense.
At his trial, Mr. Green’s lawyers built a case intended less to deny his role in the crime than to plant questions about whether he deserved the death penalty.... After the sentencing, Doug Green, 28, Mr. Green’s brother, told The Associated Press: “I do think it gives him a chance to have some semblance of a life. We’re grateful for that.” The team of defense lawyers, Scott Wendelsdorf, Darren Wolff and Patrick Bouldin, said in a statement: “The defense thanks the jury for their careful consideration and ultimate decision. There are no winners in a case like this that is tragic on so many levels.”
Long weekend sentencing reading from SSRN
These two new piece on very different sentencing topics caught my eye on SSRN this morning:
Abstract: As many as 6,000 women are pregnant in prison in the United States. The option of abortion is particularly suited for these women, who struggle with public assistance, drug addiction, or who are at risk of losing their child to the foster system. The Bureau of Prisons policies governing abortion in prison effectively require potentially coercive religious counseling, empower prison administrators to “pass the buck” and control abortion access, and disregard the time constraints associated with pregnancy. Although these federal prison policies are facially constitutional and therefore survive substantive challenges, they are unconstitutional as applied because they deny pregnant offenders the constitutionally protected procedures that should accompany the right to abortion. A simple, albeit surprising, analogy to prison correspondence policies can provide a roadmap for establishing the basic protections of notice and a hearing. These procedural safeguards ensure that incarcerated women have the information they need to make reproductive decisions behind prison walls.
Abstract: "Future dangerousness” is a very non-technical name for a particularly problematic capital sentencing factor used in nearly every capital jurisdiction in the United States, directly underlying at least half of all modern era executions and likely playing some role in the rest. Despite its popularity, the American Psychiatric Association has maintained for over twenty years that such predictions of future threat are “wrong in at least two out of every three cases.” Thus, while an inquiry into a defendant’s future dangerousness seems to align with a Supreme-Court-approved purpose of capital punishment (“the incapacitation of dangerous criminals and the consequent prevention of crimes that they may otherwise commit in the future”), in application the incapacitation rationale is severely undermined by alarmingly unreliable predictions of future threat. Of even graver concern should be the effect of future dangerousness to obscure any culpability determination, resulting in a high number of death sentences for vulnerable defendants most people would never consider “deserving of execution,” and undercutting another common rationale for capital punishment: retribution.
This should cause us all to pause and, as Justice Stevens recently urged in Baze v. Rees, to question our retention of a system that is “the product of habit and inattention rather than an acceptable deliberative process that weighs the costs and risks of administering that penalty against its identifiable benefits[.]” This article broadly examines future dangerousness’ flawed application and unique ability to distort the constitutional function of capital sentencing hearings, replacing a juror’s duty to consider individual culpability with a fear of responsibility for future violence. It concludes that, while comprehensive reforms might minimize its unsettling and unconstitutional implications, current use of future dangerousness is leading to unnecessary and unconstitutional executions lacking both incapacitation and retributive rationales.
May 22, 2009
Notable new Alaska appellate decision on denying gun rights to non-violent felons
Thanks to this post at Volokh, I learned of an interesting new Alaska Court of Appeals decision in Wilson v. Alaska (available here) addressing whether nonviolent felons have any rights under the state's Constitution. Here are basic parts of the opinion for the court:
The thrust of Wilson’s argument is that the statute prohibiting a felon from possessing a concealable firearm violates article I, section 19 of the Alaska Constitution because it does not differentiate between violent and non-violent felons, and thus is not narrowly tailored to achieve the State’s compelling interest in preventing violent crime. Wilson argues that article I, section 19 guarantees an individual’s right to keep and bear arms, and therefore any law that restricts that right must be narrowly tailored to protect a compelling government interest.
Wilson points out that he was convicted of a non-violent, class C felony — theft in the second degree — for fraudulently obtaining unemployment benefits. He states that he is a sixty-seven-year-old man who lives in a cabin on a homestead, lives a subsistence lifestyle, and needs a handgun for personal protection. He argues that the State cannot justify restricting his constitutional right to possess a concealable firearm....
[U]nder our prior cases, we have rejected the constitutional challenge that Wilson now brings. Furthermore, other states have consistently rejected similar constitutional challenges. We accordingly conclude that Judge Wolverton did not err in denying Wilson’s motion to dismiss.
The separate opinions that accompany this somewhat analysis talk through this interesting issue in a lot more detail.
Some related Second Amendment posts:
- Interesting report on a Heller argument in the Seventh Circuit
- District Court rejects Second Amendment claim from misdemeanant
- Another (too?) brief opinion rejecting misdemeanant's Second Amendment claim
- SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
- Even the Chief and Justice Scalia are content to damn gun possession with faint praise
- Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?
- Justice Scalia sells out felon gun rights, but on what basis exactly?
- The lack of originalist justification for excluding felons from the Second Amendment
- Assailing the unjustified Second Amendment limits in Heller
- "Why Can’t Martha Stewart Have a Gun?"
- What might 2009 have in store for . . . Second Amendment jurisprudence?
Connecticut Governor pledges to veto death penalty repeal bill
According to this AP story, the effort to repeal the death penalty in Connecticut is going to die on the desk of the state's governor:
Connecticut Gov. Jodi Rell vowed Friday to veto a newly approved bill banning the death penalty as soon as she receives it, saying capital punishment is appropriate for certain heinous crimes. The measure, approved early Friday by the state Senate and last week by the state House of Representatives, would replace capital punishment with life in prison without the possibility of parole.
At least two-thirds of the members of each chambers would have to vote to override a veto. But achieving that margin is in doubt, given the tight 19-17 vote in the Democrat-led Senate. The bill passed 90-56 in the House, which also led by Democrats.
Rell, a Republican, said Friday that while she understands the "passionate beliefs of people on both sides" of the debate, she will veto the measure "as soon as it hits my desk." "I also fully understand the anguish and outrage of the families of victims who believe, as I do, that there are certain crimes so heinous, so fundamentally revolting to our humanity , that the death penalty is warranted," she said....
New Jersey and New Mexico are the only states that have abolished the death penalty since the U.S. Supreme Court allowed states to reinstate capital punishment in 1976. Thirty-five states have death penalty laws, although some have not executed a prisoner in decades.
There are 10 men on Connecticut's death row, including three who committed their crimes in the 1980s. The legislation would not retroactively affect their cases.
Several murder victims' relatives gathered at the Capitol on Friday to support the ban, saying state-sanctioned executions of convicted murderers do not compensate for their losses.
"Is 500 serious crimes worth the freedom of 50,000 offenders? That's my question."
At the end of a lengthy debate in the comments to an earlier post, frequent commentor "federalist" tees up a great question that goes to the heart of the challenges facing all sentencing reform efforts. The question federalist poses is the question in the title of this post, and I wanted to set it out in this new post so that it could be discussed and debated in a fresh setting.
My students know that I say that the right answer to every good question is "it depends," and I think that this is the right answer to federalist's great question. First, of course, we need some sense of what "serious" crimes are hypothetically being prevented by denying freedom 50,000 offenders. I think most everyone would say that heroin dealing and downloading child porn and illegal dogfighting and mortgage fraud and perjury and domestic violence are all serious crimes, and yet I suspect few would endorse trading off freedom for 50,000 offenders to prevent 500 of these kinds of "serious" crimes.
To his credit, federalist provides a sketch of his vision of "serious" crimes: "forcible rape, armed robbery, murder, drunk driving." I suspect he added drunk driving to the list because I often complain that we do not seem to treat drunk driving as a serious crime unless and until the drunk driver kills or seriously hurts someone. If we accept the idea that drunk driving is a serious crime, I wonder if federalist and others would seek to deny the freedom for Charles Barkley and Joba Chamberlain and Mel Gibson and Lindsay Lohan and Nicole Richie and 49,995 other recent drunk driving offenders in the hope of preventing 500 new cases of drunk driving.
Even leaving drunk driving out of the debate, we also have the fundamental question of whether this hypo sets up a false choice because of the other costs of denying freedom to 50,000 offenders. Specifically, at current rates, it could cost well over $2,000,000,000 deny this freedom for just one year. I would think spending that $2 billion on additional cops (or better health care and schooling) could prevent even more serious crimes. Plus, of course, there is the (abstract?) cost to freedom and liberty for the 49,500 offenders (and all who know them) from being locked up to prevent others from committing crimes.
That all said, while we could seek to further refine or dispute federalist's basic great question, modern risk assessment tools and crime data create the need for all would-be sentencing policy-makers and reformers to confront some variation of this great question at some point in some way.
So, dear readers, how do you respond to it? Relatedly, how do you think Thomas Jefferson and the authors of the Federalist Papers and others who founded the US would respond?
Connecticut legislature sends death penalty repeal bill to Governor Rell
This local article reports on interesting early-morning death penalty reform developments in Connecticut:
The Connecticut Senate voted to abolish the death penalty early Friday morning after a marathon debate, narrowly approving a bill that would make life imprisonment without possibility of release the state’s highest criminal punishment.
The Senate approved the death penalty bill, 19-17, shortly after 4 a.m., after nearly 11 hours of debate. The same measure had previously passed in the House of Representatives, and proceeds to Gov. M. Jodi Rell, who has appeared likely to veto the bill.
If signed into law, the bill would make Connecticut the 16th American state without an active death penalty statute....
After the vote, Sen. Andrew McDonald, D-Stamford, the bill’s chief proponent and the co-chairman of the Judiciary Committee, sounded tired but jubilant. “This was a historic day for our chamber and for our state,” McDonald said. “I would encourage the governor to take some time and reflect on the magnitude of what the people’s chambers have said today, and to consider anew the continued viability or utility of the death penalty in a civilized society.”
The bill, already passed with bipartisan support in the House of Representatives last week, faced a far stiffer challenge in the Senate, and now from Rell, a Republican who supports capital punishment.
USA Patrick Fitzgerald urges business leaders to hire felons
A helpful reader sent me this notable item from the Chicago papers, which is headlined " Fitzgerald: Fight crime by hiring felons: U.S. attorney says business could help cut murder rate, hire teens as interns." Here are excerpts:
U.S. Attorney Patrick Fitzgerald stood before a room packed with business officials Thursday and asked them to do something they probably have never considered: Hire felons.
Not exactly the kind of request you'd expect from the area's top federal law enforcement official, who's better known for locking up criminals. But Fitzgerald told the audience that while law enforcement targets the worst of the worst, the community needs to get more involved -- especially the business community -- to help drive down murder numbers and keep kids out of gangs.
Fitzgerald, speaking at a City Club of Chicago luncheon, said on any given day there are 4,000 Chicago Police officers on the streets and an estimated 70,000 to 100,000 gang-bangers in the city. "How in the world can we incarcerate our way out of the problem when we are outnumbered that much?" Fitzgerald said.
Part of the answer, he said, lies with corporations, who can help sponsor after-school programs or enlist teenagers from the projects to be summer interns -- or even hire felons. He urged business officials to reach out and invest in some of the most economically depressed areas of the city, such as Englewood, Back of the Yards or North Lawndale. They can do that, Fitzgerald said, by getting involved in Project Safe Neighborhoods, a program run through the U.S. attorney's office in conjunction with other law enforcement agencies....
Fitzgerald said research has shown that parolees who have attended a one-hour forum held by Project Safe Neighborhoods are 30 percent less likely to return to jail. The forum gives parolees job options and warns them that they'll be thrown back in prison if they cross the line.
May 21, 2009
West-coast swing for the US Sentencing Commission next week
As detailed in this official notice, the US Sentencing Commission has scheduled a public hearing for May 27-28, 2009, at Stanford Law School. This link provides the agenda and the list of impressive persons scheduled to testify at the USSC hearing. From the folks at Stanford, I received these additional details about the hearing:
This public hearing is the second in a series of regional hearings to mark the 25th anniversary of the passage of the Sentencing Reform Act of 1984 ("SRA").... The hearing will allow commissioners to hear directly from judges, practitioners, academics, and other individuals about their experiences with, and any suggestions regarding, federal sentencing policy. In particular, the Commission is interested in the following topics:
1. How has the advisory nature of the federal sentencing guidelines after the Supreme Court's decision in United States v. Booker, 543, U.S. 220 (2005) affected federal sentencing?
2. What should be the role of the federal sentencing guidelines in federal sentencing? What, if any, changes should be made to the federal sentencing guidelines?
3. Does the federal sentencing system strike the appropriate balance between judicial discretion and uniformity and certainty in sentencing?
4. How should offense and offender characteristics be taken into account in federal sentencing? What, if any, changes should be made with respect to accounting for offense and offender characteristics?
5. What type of analysis should courts use for imposing sentences within or outside the guideline sentencing range?
6. How have Booker and subsequent Supreme Court decisions affected appellate review of sentences?
7. What, if any, recommendations should the Commission make regarding the Federal Rules of Criminal Procedure?
8. What, if any, recommendations should the Commission make to Congress with respect to statutory changes regarding federal sentencing?
The USSC is asking all the right questions, and I suspect the impressive folks testifying will have lots of good answers.
New sex offender rules and regulations become law in Iowa
As detailed in this local article, "revised restrictions on convicted sex offenders were signed into law today by Gov. Chet Culver, under a bill that several key law enforcement officials said will better protect Iowans." Here are more details:
The main change in Senate file 340 sets up what is known as exclusion zones. It gives schools, child care centers and public library officials the ability to grant or deny access to any convicted sex offender.
But the bill also no longer prohibits about 3,100 of the state's lower-risk offenders from living closer than 2,000 feet from a school or child care facility. They could live as close as they like, but they would not be allowed inside the exclusion zone. Offenders with the most serious crimes on their records would still be required to abide by the 2,000-foot rule, however.
Law enforcement agency representatives have generally said the revised law would help them keep the most dangerous child predators away from key areas where children are located. Currently, a sex offender can spend time around places like schools but simply cannot live in that location. The changes would give law enforcement more authority to remove sex offenders from such areas and better protect the public, advocates for the bill said.
The bill, which some lawmakers have worked on for more than four years, easily passed both the House and the Senate with votes from both Democrats and Republicans. About 70 law enforcement officials and lawmakers from both parties joined Culver at the Capitol today to sign the bill. “This was done to fix a loophole in the law, which although limiting where offenders could live, it did not address other dangers to public safety in terms of day-to-day behaviors of registered sex offenders,” Culver said.
As regular readers know, Iowa was a pioneer in the development of residency restrictions and also was the locale for the first complaints from law enforcement officials about administrative problems with these laws. It will be interesting to see if other jurisdictions transition away from unduly broad residency restrictions and move toward this new "exclusion zones" model.
Some recent related posts:
- Effective primer on sex offender residency restrictions
- New scholarship on sex offender residency restrictions
- New note on sex offender residency restrictions in new Drexel Law Review
- "Sex Offenders Forced To Live Under Miami Bridge"
- Study on sex offender registration in New Jersey suggests its ineffectiveness
- "States wrestle with how to fund federal sex offender law"
- Extended ABAJ article about sex offender registries
- FSR Issue 21.2: Sex Offenders: Recent Developments in Punishment and Management
- What might 2009 have in store for . . . sex offender law and policy?
The persistent and enduring challenges of cracking the crack disparity in Congress
As detailed on this official hearing page, this morning the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee has been holding a hearing on crack sentencing. As I predicted in this prior post, it does appear from the written testimony (now linked from the hearing page) that everyone involved in the hearing is speaking out against the current 100:1 drug weight ratio that now exists in federal statutory sentencing provisions. But while the status quo 100:1 ratio is being universally criticized, exactly what should take its place is subject to continuing debate.
Specifically, consider this passage from the written testimony of Joseph Cassilly, the President of the National District Attorneys Association:
I am testifying on behalf of the National District Attorneys Association, the oldest and largest organization representing State and local prosecutors. I have attached a resolution adopted by NDAA regarding the sentencing disparity between crack and powder cocaine. NDAA agrees that some adjustment is warranted, but just as the 100:1 disparity cannot be justified by empirical data we believe that the proposed 1:1 realignment of Federal penalties for crack versus powder cocaine also lacks any empirical or clinical evidence. A random adjustment will have severe negative consequences on the efforts of this nation’s prosecutors to remove the destructive effects of crack and violence from our communities....
The nation’s prosecutors urge Congress to adopt a sentencing scheme with regard to the destruction caused by crack cocaine to our communities. If there is a need to reduce the disparity between crack and powder cocaine then perhaps the solution is to increase sentences for powder cocaine.
Similarly, consider this passage from the written testimony of Bob Bushman on behalf of the National Narcotics Officers Association Coalition:
We have been asked, repeatedly, over the past few years about our views on legislative proposals to reduce the crack-powder disparity. While we believe that the existing law has been a valuable tool in reducing the impact of crack on communities, we realize that it has also had a negative impact on some people’s perception of law enforcement. So, while we agree that it is appropriate for Congress to review the law, we also believe that Congress should consider a solution to narrow the disparity between crack and powder cocaine that includes lowering the threshold quantity for powder cocaine. We do not believe the best approach is to dramatically increase the threshold amount of crack that triggers the minimum penalty.
In other words, even though it does not appear anyone will come out in full-throated support for the current 100:1 crack/powder statutory status quo, there are still strong voices calling for preserving some significant disparity in crack/powder sentencing provisions and/or advocating that the solution is to make powder cocaine sentences harsher instead of making crack sentences softer.
This persistent and enduring reality — namely the robust policy debate over exactly how the current 100:1 disparity should be addressed — accounts for why I remain, as expressed here, depressingly skeptical that major federal sentencing changes in this area (or others) is imminent. One of the fascinating lessons of modern sentencing reforms over the last few decades (especially at the federal level) is that it is relatively easy to enact legislation to increase sentences and extremely hard to enact legislation to reduce sentences.
So, while advocates for lower sentence can and should remain hopeful in light of recent development, they also must be realistic about the political challenges of achieving broad and significant sentencing reforms in the legislative arena. That is why I have been saying since November that federal sentencing reformers should focus principally on the USSC and courts, because status quo biases and the challenges of legislative inertia do not as directly prevent them from engineering major reforms (as Blakely and Booker highlighted so dramatically).
Some related recent posts on crack sentencing debates:
- Talk of drug courts, but not major policy changes, in drug war from Obama team
- Is the new DOJ about to crack the stalemate over fixing the crack disparity?
- Watching the webcast of the Senate crack disparity hearing
- New York Times editorial on crack sentencing
- With the new DOJ advocating completely eliminating crack/powder disparity, now what?
- Has there been any in-court impact from DOJ's new crack sentencing policy?
- Thoughtful new district court opinion adopting 1:1 crack/powder ratio
New Pew report with "evidence-based sentencing initiatives to control crime and reduce costs"
I just learned of a new policy brief from the Pew Public Safety Performance Project, which is titled "Arming the Courts with Research: 10 Evidence-Based Sentencing Initiatives to Control Crime and Reduce Costs." The policy brief can be accessed at this link, where it is summarized this way:
For many years, conventional wisdom has been that “nothing works” to change offender behavior — that once an offender has turned to crime little can be done to help turn his or her life around. Today, however, there is a voluminous body of solid research showing that certain “evidence-based” sentencing and corrections practices do work and can reduce crime rates as effectively as prisons at much lower cost.
This policy brief outlines 10 strategies for evidence-based sentencing that would allow states to reduce their crime rates while conserving state resources to meet other important needs. The brief is adapted from a longer paper by Roger Warren, president emeritus of the National Center for State Courts, that was originally published in a special 2007 issue of the Indiana Law Journal.
Are federal supermax prisons tough enough for terrorist detainees?
According to this new AP article, which is headlined "Obama says US prisons tough enough for detainees,"President Obama views federal supermax prisons to be tough enough for government work. Here is part of an AP report on the President's security speech today:
President Barack Obama said Thursday some of the terror suspects held at Guantanamo would be brought to prisons in the United States despite fierce opposition in Congress. He promised to work with lawmakers to develop a system for imprisoning detainees who can't be tried and can't be turned loose.
"There are no neat or easy answers here," Obama said in a speech in which he pledged anew to "clean up the mess at Guantanamo" that he said the nation had inherited from the Bush administration. Obama conceded that some of the detainees would end up in U.S. prisons and insisted those facilities were tough enough to house even the most dangerous inmates....
Obama noted that roughly 500 detainees already have been released by the Bush administration. There are 240 at Guantanamo now.... "I can tell you that the wrong answer is to pretend like this problem will go away if we maintain an unsustainable status quo," Obama said. "As president, I refuse to allow this problem to fester. Our security interests won't permit it. Our courts won't allow it. And neither should our conscience."
Obama said his administration was in the process of studying each of the remaining Guantanamo detainees "to determine the appropriate policies for dealing with them."
"Nobody has ever escaped from one of our `supermax' prisons which hold hundreds of convicted terrorists," Obama said....
He described this [detainee] group as those "who cannot be prosecuted yet who pose a clear danger to the American people."
"I want to be honest: this is the toughest issue we will face," Obama said. He said that the his administration would "exhaust every avenue that we have" to prosecute detainees but there would still be some left "who cannot be prosecuted for past crimes" yet remain a threat. Among these, he said, are prisoners who have expressed allegiance to Osama bin Laden "or otherwise made it clear they want to kill Americans."
"So going forward, my administration will work with Congress to develop an appropriate legal regime" to handle such detainees "so that our efforts are consistent with our values and our Constitution."
Though I have never actually served time either in a federal supermax facility or at Guantanamo, my sense is that inmate life at a federal supermax facility is actually tougher than inmate life at Guantanamo. But I am basing this statement on mostly third-hand reports. Indeed, I would be grateful to hear from anyone representing persons in a federal supermax facility and/or at Guantanamo about their impressions about which locale is "tougher" for those held there.
Some notable death penalty headlines
Thanks to the always terrific How Appealing, I saw these interesting death penalty stories in today's newspapers:
- From the Kansas City Star here, "Execution protocol passes test; 13 more on death row in Missouri"
- From the New York Times here, "Death Row Foes See Newsroom Cuts as Blow"
Also, on my own, I found these additional execution protocol stories of note:
- From the Dayton Daily News here, "Ohio adjusts its lethal injection protocol"
- From the Seattle Times here, "Hearing on constitutionality of lethal injection begins today"
May 20, 2009
"Sex Offenders Forced To Live Under Miami Bridge"
The title of this post is the title of this segment from today's episode of All Things Considered on NPR. Here are excerpts:
In Miami, a causeway in the middle of Biscayne Bay has become home to one of the county's least desirable populations: sex offenders. What began a few years ago as a stopgap solution has become de facto public policy. For sex offenders with few resources who want to stay in Miami, there's just one option: an encampment of tents and shacks on the Julia Tuttle Causeway.
The encampment got started a few years ago, when Miami-Dade County, like other communities across the country, adopted an ordinance banning sex offenders from living within 2,500 feet of anywhere that children gather....
What once was a collection of tents has now become a small village. There are a half-dozen shacks, some with kitchens and working toilets. A few of the men have built a dock for fishing where some small boats are tied up. Right now, 67 people live here. And nearly every week, probation officers drop off sex offenders, recently released, who have nowhere else to go....
So far, officials in Miami-Dade County say they see no reason to change the ordinance. Jose "Pepe" Diaz is one of the county commissioners who sponsored the law. He concedes that the growing encampment presents health and safety problems but notes that it's the state, not the county, that's put the sex offenders there. And that's a population for which he has little or no sympathy.
Upcoming House Judiciary subcommittee hearing on crack sentencing
As detailed on this official hearing page, the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee has a hearing on crack sentencing scheduled for the morning of Thursday, May 21. The title of the hearing is "Unfairness in Federal Cocaine Sentencing: Is it Time to Crack the 100 to 1 Disparity?" and the witness list suggests that everyone involved will be speaking out against the current 100:1 drug weight ratio that now exists in federal statutory sentencing provisions.
Even though this hearing suggests continuing momentum for change to the current crack/powder statutory status quo, I remain depressingly skeptical that major federal sentencing changes in this area (or others) is imminent. The many political challenges of reducing sentences — as well as the many practical challenges of giving retroactive effect to any reduced sentences — has thwarted needed reforms in this area (and others) for more than a decade. I continue to hope that key legislative players get past talking the talk in Congress and start walking in the walk with actual legal changes. But, until then, I encourage expectations to remain low, even though hopes are justifiably now very high for federal sentencing change we can believe in.
Some related recent posts on crack sentencing debates:
- Talk of drug courts, but not major policy changes, in drug war from Obama team
- Is the new DOJ about to crack the stalemate over fixing the crack disparity?
- Watching the webcast of the Senate crack disparity hearing
- New York Times editorial on crack sentencing
- With the new DOJ advocating completely eliminating crack/powder disparity, now what?
- Has there been any in-court impact from DOJ's new crack sentencing policy?
- Thoughtful new district court opinion adopting 1:1 crack/powder ratio
Michael Vick now a free man... sort of
The latest news on the latest former federal prisoner can be found here at the top of the CNN's news feed:
Former Atlanta Falcons quarterback Michael Vick left a federal prison in Leavenworth, Kansas, early Wednesday, according to his publicist and the Federal Bureau of Prisons. He will serve the last two months of his 23-month sentence in home confinement in Virginia, his publicist Judy Smith said. He is a native of Newport News, Virginia....
He will return to professional football as soon as September if reinstated by the NFL, according to the sports agent who negotiated Vick's 10-year, $140 million contract with the Falcons. Meanwhile, Vick's attorneys have said he will work at a Newport News construction firm following his release, and he has also agreed to participate in a documentary for $600,000....
Vick plans to work with the Humane Society of the United States on anti-dogfighting campaigns, Humane Society President Wayne Pacelle told CNN on Tuesday. Vick will work on programs aimed at preventing youths from getting involved in dogfighting, and also on programs to assist young people who have already been involved in the blood sport.
Pacelle said the Humane Society was approached by Vick's representatives. He said he has traveled to Kansas twice to meet with the former quarterback, and during the second visit, the two discussed how Vick could use his sway over youths to discourage them from involvement in dogfighting, as well as help those who were apprehended in connection with it.
Some related recent posts:
- Are there broader lessons to be drawn from Michael Vick's up-coming prisoner reentry story?
"Longtime fugitive mom freed from prison"
The title of this post is the headline of this article that provides an update on a high-profile case that prompted interesting sentencing debates when it first made news. Here are a few details:
Susan LeFevre's first prison stretch 33 years ago was so scary that she decided to escape. Now, more than a year after her capture, the woman who changed her life to become a suburban mom in California is free again — and this time her departure was legal.
"It's been very traumatic. I didn't think I'd make it at times," LeFevre, 54, said of her second term behind bars, describing prison as a "very tragic" place.
She was released Tuesday from the Huron Valley prison, south of Ann Arbor, and rode away in a car, a more comfortable departure than in 1976 when she climbed a fence at another prison to escape a 10-year sentence for a heroin deal....
A judge in September placed her on probation for the escape. Separately, the Michigan Parole Board voted in January to release her from prison on the drug sentence, saying she had led a productive and crime-free life in California. But the board made her wait until Tuesday because of misconduct in prison. Her record has been clean the past four months....
In prison, humor and conversation among inmates are a cover for a harsh reality, LeFevre said. "There is a real suffering from being detached from the world. I hope there's a lot more done for rehabilitation," she said....
In 1976, LeFevre had served about 14 months of a 10-year sentence for a heroin sale when she escaped. She expressed regret to a Wayne County judge last fall and said it was a "terrible thing to do." LeFevre said she was just 21 and frightened by other inmates. When she returns to California, LeFevre will be on parole for the drug crime until May 2013. She can't drink alcohol, possess firearms or associate with felons.
One of many notable aspects of this story is that Susan LeFevre is often described a "fugitive mom" rather than a fugitive drug dealer or esacped prisoner. And she only got to be a mom because she was a fugitive after her prison escape. Though perhaps we should not be troubled by this high-profile example of gender bias, I think it unlikely that a man who acted just like LeFevre would now be viewed in such forgiving ways.
Prior posts on LeFevre case:
- Should Michigan be willing to forgive and forget long-ago drug crime?
UPDATE: This interesting commentary from the Detroit Free Press, headlined "So long, Susan, and don't forget a promise," suggests that LeFevre herself recognizes that her gender and class have played a role in her notoriety:
Last July, I was the first journalist to interview LeFevre, now 54, after she was brought back to a Michigan prison, after spending 32 years as an escaped prisoner in California. There, she married, raised three children and lived a model life in suburban San Diego.
But I didn’t show up at Tuesday’s press conference outside Huron Valley Correctional Facility, where she was released and joined her husband, Alan Walsh, a waste industry executive. As someone who spends more time in prisons talking to and writing about inmates than any journalist in Michigan, I’ve seen dozens, maybe hundreds, of injustices greater than hers. Her case, however, generated more publicity than any I’ve reported in the last decade, including the 2006 death by heat and thirst of Timothy Joe Souders, a 21-year-old mentally ill inmate.
Still, I fully supported her bid for freedom. She poses no risk to society. Whatever the word “rehabilitation” means, she can claim it....
Whenever I talked to Susan, and whenever she wrote to me, she seemed very much aware that she was getting extra media play because she was an upper-middle-class white woman who lived in an affluent suburb. But she wanted to use that attention, she told me, to raise awareness about problems in the prison and criminal justice system, especially for women.
The light of the cameras can both illuminate and blind. Now that she’s free, I hope Susan won’t forget the people she’s left behind.
Executions go forward with apologies (and without a hitch?) in Missouri and Texas
As detailed in this AP story, two murderers "spent some of their last moments apologizing for their crimes before they were put to death six hours apart in Texas and Missouri, which executed its first convict in four years." Here are some specific details:
In a lengthy, written final statement, Dennis Skillicorn expressed sorrow for the 1994 murder of a Richard Drummond, who stopped to offer help after a car carrying Skillicorn and two other men stalled along Interstate 70....
Early Wednesday, Skillicorn mouthed words to his wife and two spiritual advisers as the first drug was administered to him. Soon, he appeared unconscious. He was pronounced dead at 12:34 a.m., 11 minutes after the procedure began....
In Huntsville, Texas, meanwhile, Michael Lynn Riley apologized repeatedly in the moments before he received lethal injection Tuesday evening and became the 15th condemned prisoner executed in the nation's busiest death penalty state....
Marcus Taylor, the now-retired Wood County district attorney who prosecuted Riley and sought the death penalty, witnessed the execution. "For those people that may think death penalty cases don't get proper examination, this is certainly evidence that's not true," Taylor said. Riley had been locked up longer than his 23-year-old murder victim lived.
While he didn't volunteer for execution, Riley had asked friends to not pray that he receive a reprieve, and he repeated that sentiment to friends who witnessed his death. "I told you years ago that I was ready," he said. Eight minutes later, after urging his fellow death row inmates to "stay strong" and that "Fleetwood is out of here," using his death row nickname, Riley was pronounced dead.
I believe that these executions bring the US total for executions to 29 in the year 2009. Also, I believe there has now been a total of 66 executions since the Supreme Court upheld the constitutionality of standard lethal injection protocols in Baze.
Though the Baze litigation did not ultimately seem to achieve too much, I cannot recall hearing a single report of a botched lethal injection protocol since the ruling. These two recent executions, like all the others since the Baze execution moratorium ended, seemed to go off without a hitch.
Thus, I suppose the defendants and defense attorneys behind all the lethal injection litigation should take pride in their success. These folks often asserted that their goal was just to make sure executions were done without excessive pain or other problems. And it would seem that every execution since Baze has gone forward without excessive pain or other problems.
Will new US Attorneys have a big impact on federal sentencing law and policy?
The new Administration's approach to crack sentencing shows how new personnel in Main Justice is already impact some parts of federal sentencing law and policy. But, on a case-by-case basis, who serves in local US Attorney offices may have an even bigger long-term impact on the shape and direction of the federal criminal justice system. Thus, sentencing fans should be very interested in this new article from The National Law Journal, which is headlined the "U.S. Attorney Picks Are Under Way: Some Senate Republicans want a say in who gets selected." Here are a few of the basics:
President Barack Obama began filling the nation's 93 U.S. Attorney positions on May 15, announcing his first wave of six nominees. The move touched off a closely guarded process freighted with symbolism in the wake of the Bush administration firings scandal.
President George W. Bush and President Bill Clinton made their first U.S. Attorney nominations days before Congress' summer recess in August. Each nominated more than two dozen in the first round.
U.S. Attorney nominations pose a potential hurdle for Obama, as he reconciles the nature of these plum political posts with his pledge of bipartisanship and Attorney General Eric Holder Jr.'s promise to rid the department of partisan meddling. Some Republicans have already signaled their intention to block candidates if they're left out of the process, including Sen. John Cornyn, R-Texas, whose membership on the Senate Judiciary Committee gives him an outsized role in nominations....
On May 15, Obama said he intended to nominate Preet Bharara for the Southern District of New York, Tristram Coffin for Vermont, Jenny Durkan for the Western District of Washington, Paul Fishman for New Jersey, John Kacavas for New Hampshire and Joyce Vance for the Northern District of Alabama.
Though just six have been named so far, about 20 candidates have come to Washington for interviews at the Justice Department in the past two months, according to a source familiar with the process. The meetings are one of the final steps before nomination.
Obama is announcing his picks for U.S. Attorneys in waves, replacing holdover Bush prosecutors once his nominees are confirmed or appointed on an interim basis while awaiting confirmation, Justice Department officials said. That breaks sharply with the system adopted by President Bill Clinton, who sacked nearly all holdover U.S. Attorneys at the start of his first term. The move angered many career Justice Department lawyers who say the turnover disrupted their work and left some prosecutors out on the street.
Some related posts:
- "Smart on Crime: Recommendations for the Next Administration and Congress"
- Why federal sentencing reformers must focus on the USSC and lower courts
- Are we on the verge of a new changed era concerning federal sentencing law and policy?
- Why I fear change will not come quickly to federal sentencing policy and practice
- Will AG Holder really lead a "new birth of freedom" in prison nation?
May 19, 2009
"Former FAMU student gets 22-month prison sentence in grade-changing case"
The title of this post is the headline of this notable federal sentencing story from Florida. Here are a few more details:
Former Florida A&M student Lawrence Secrease was sentenced Monday to 22 months in prison and three years' supervised release in the case involving unauthorized grade changes at the university, according to the U.S. Attorney's Office.
Secrease was the second defendant to be sentenced on charges of aggravated identity theft, unauthorized access of a protected computer, conspiracy to commit wire fraud and a substantive count of unauthorized access of a computer. He pleaded guilty on all charges....
The three co-defendants caused the grades of about 90 FAMU students to be changed, affecting 650 grades overall, according to the U.S. Attorney's Office. About 114 grade changes were failing "F" grades changed to "A" grades, said Karen Rhew, spokeswoman for the U.S. Attorney's Office. The three men also caused residency status of certain students to be changed from out-of-state to in-state, reducing the amount of tuition owed by thousands of dollars.
Will President Obama soon have to confront the Troy Davis case?
This blog post from a UK paper, titled "Why President Obama should have Georgia on his mind," flags an issue I have been thinking about recently. Here is how the post begins:
Unlike presidents Bush and Clinton, there's one potentially controversial issue in the United States that has yet to seriously trouble President Obama -- the death penalty. That could be about to change.
A death row prisoner with a particularly strong claim that he was wrongly convicted could be just weeks away from execution. Would the president stand by and let that happen? It might be difficult for him if he did. Here's why.
The case in question is that of Troy Davis, a 40-year-old man who has been on death row in the state of Georgia since 1991. On Saturday his "stay" of execution was lifted leaving it open to state officials to set an execution date. It won't be his first. Last September he was just two hours from a lethal injection until, at the eleventh (tenth?) hour, the Supreme Court stepped in and the execution was halted.
Should Conrad Black (and Jeff Skilling and others) be set free pending SCOTUS action?
Though the Supreme Court's cert grant yesterday in the criminal appeal of media mogul Conrad Black raises mostly white-collar substantive criminal law issues (as noted by bloggers here and here), I am wondering if and how this should impact the quasi-sentencing issue of bail pending appeal.
As noted here, Black was denied bail pending appeal by the Seventh Circuit last year and has now served more that a year in prison. Though the SCOTUS cert grant does not ensure Black's convictions will be reversed, it does greatly increase the chances he could be freed eventually. However, given the standard (slow) pace of SCOTUS action, Black's case won't be argued to SCOTUS until the fall and a ruling seems unlikely before 2010. In light of the cert grant, it seem to me that Conrad Black now has a much stronger argument that he should be able to be free rather than locked up while his (suspect?) convictions are reviewed.
Moreover, as detailed in this Houston Chronicle article, the fate of at least one other high-profile white-collar defendant also could be impacted by the now-pending Black SCOTUS case:
The U.S. Supreme Court’s decision today to hear the appeal of former media mogul Conrad Black could bode well for imprisoned former Enron CEO Jeff Skilling. “Skilling’s crossing his fingers,” said Wayne State University Law School professor Peter Henning, who is familiar with both cases. “This is Skilling’s best hope.”
Last week Skilling appealed to the high court clear up questions about a prosecution theory of guilt that backfired in other Enron-related cases, but was embraced by appellate judges in his case. The Black case ... involves the same theory, so the outcome of his appeal likely means the 5th U.S. Circuit Court of Appeals panel that affirmed Skilling’s 19 convictions will have to take another look....
“In effect, he’s in a bit of limbo now,” Henning said. “Regardless of what happens in Black, his case will get remanded for reconsideration to the 5th Circuit.” Skilling’s case still has a chance to be heard by the Supreme Court, but Henning said it’s unlikely after a case involving such similar issues has been accepted.
Daniel Petrocelli, Skilling’s lead lawyer, today called the Black case’s acceptance for review “a very significant development, and not just for Jeff Skilling’s case, but frankly for our entire justice system.”
Does Skilling likewise now have a much stronger argument for release pending appeal, especially given that it could likely be a full two years before SCOTUS decides Black and then the Fifth Circuit decides what the Black ruling might mean for Skilling's case? And are there lots of other similarly situated white-collar defendants serving time for honest services fraud that should now be going back to lower courts citing the Black cert grant to try to get back home while appeals are on-going?
NFL update: More on Vick's release ... while wondering about Plaxico's fate
For all you reentry fans, here is the latest news from ESPN about Michael Vick's imminent release from federal prison:
Concerned about Michael Vick's security, the federal bureau of prisons remains secretive about exactly when he will leave the federal penitentiary after serving 23 months for a dogfighting conspiracy. The suspended NFL quarterback's release could come under the cloak of darkness, sources close to Vick told ESPN's Kelly Naqi. Paperwork is being processed Tuesday and Vick is expected to leave prison sometime Wednesday.
Upon his release, Vick will travel to his home in Hampton, Va., about a 19-hour trip if he chooses to drive. He will not be escorted by federal authorities and must report into the probation office in Norfolk on Friday, at which time he'll begin serving home confinement. For two months, the suspended NFL star will be largely confined to his home and will wear an electronic monitor that allows federal probation officials to track his movements. He is expected to be released from federal custody on July 20....
Vick will be allowed to go to his full-time construction job and will likely be allowed about five hours a week for other court-approved activities, according to Ed Bales, managing director of Federal Prison Consultants, an inmate rehabilitation advocacy group.
Permissible activities for inmates on home confinement typically include things like medical appointments, religious obligations and meetings with probation officials. No dinners out. No chilling at a friend's house. And definitely no bars. "He's going to be pretty much read the riot act: 'If we catch you in one situation like that, it's back to you know where,' " Bales said.
One restriction tailored specifically for Vick for his three years of supervised probation: He can never again own a dog. U.S. District Judge Henry Hudson already made that decision when he sentenced Vick.
I did not realize a condition of Vick's supervised release prohibited dog ownership. I guess Vick can have a cat, and I sure hope he does not get drawn into the ugly clandestine world of cat juggling.
Meanwhile, while looking for Vick news, I came across this articlenoting that the Chicago Bears are talking about signing Plaxico Burress, who apparently "has a June 15 hearing stemming from felony gun charges." Given that New York state prosecutors seem disinclined to let Burress plead to anything that does not include at least a year in prison, I find it strange (and perhaps telling) that NFL teams and reporters still do not seem to fully realize that Burress could end up spending as much if not more time behind bars as Vick has simply for possessing a gun in the wrong place and the wrong time.
More on my personal favorite surprise SCOTUS short-lister
As noted in this prior post, I was surprised and pleased to hear my co-author and pal (and sentencing guru) Nora Demleitner, the current Dean at Hofstra University School of Law, on an NPR segment suggesting novel SCOTUS short-list names. Now I am also pleased that Newsday has this follow-up story about Nora's sudden status as a SCOTUS short-lister:
Much to her surprise, the dean of Hofstra University Law School woke Sunday morning to find she had just been thrust into the national political conversation as a possible contender for a seat on the United States Supreme Court.
National Public Radio speculated that Dean Nora V. Demleitner, 42, of Port Washington, was among those being considered by President Barack Obama for a job on the nation's highest court. "I was very surprised in that NPR mentioned me," Demleitner said in an interview Monday. "It's an incredible honor to be mentioned."
But the speculative allusion by legal affairs reporter Nina Totenberg may be as far as it goes. Demleitner said she has not been contacted by anyone from the Obama administration. The staff of Judiciary Committee member Sen. Charles Schumer (D-N.Y.) declined to comment on Demleitner's possible nomination to replace U.S. Supreme Court Justice David Souter, who is retiring in June when the court's term ends.
Brian Griffin, former president of the Criminal Courts Bar Association of Nassau County, said he read about Demleitner's potential candidacy in the newspaper. "I wasn't aware of her until she started appearing on the radar in the last few days," Griffin said. "It's comforting to know that someone with serious understanding of criminal law — the serious consequences and permanency of any conviction — is being considered for the Supreme Court."
Demleitner said she was baffled about how her name got mentioned. "Like everybody else, I know a lot of people who have connections, but I could not begin to imagine who would have done it," Demleitner said of a possible nomination....
Professor Julian Ku, who teaches constitutional and international law at Hofstra, said Demleitner has some unusual qualifications. "What makes her different is that her work is not focused primarily on U.S. laws. She's looking at U.S. laws in the context of the global community," said Ku. "There is no one like her on the court. It would be totally an out-of-the-box pick."
In January 2008, Demleitner became the first woman and the youngest person to assume the dean's post in the law school's 39-year history, according to Sun Min, a spokeswoman for the law school. Demleitner spent most of her career in academia, teaching in Germany, Italy, Michigan, Texas, Miami and at Hofstra. She has written extensively on the disfranchisement of convicted felons.
For various reasons, I would be (wonderfully) shocked if Nora was selected for SCOTUS this time around. But I am intrigued (and hopeful) about the possibility that her new short-list status might foreshadow the possibility that she be named, say, to the US Sentencing Commission or to the Second or DC Circuit or to any other important national position that could profit greatly from having someone with Nora's diverse background and keen insights on an array of issues.
Some recent related posts:
Notable Fifth Circuit ruling about reach/impact of Kimbrough
The Fifth Circuit issued a notable sentencing ruling yesterday in US v. Simmons, No. 08-60755 (5th Cir. May 18, 2009) (available here). This case has bounced up and down as the district court and the Fifth Circuit try to figure out post-Booker sentencing rules. Here is the latest insights from the Fifth Circuit about Kimbrough and related matters:
Kimbrough does not limit the relevance of a district court’s policy disagreement with the Guidelines to the situations such as the cocaine disparity and whatever might be considered similar....
Whatever else in Kimbrough might require further case development, it is evident that the Supreme Court held that a district court’s policy disagreement with the Guidelines is not an automatic ground for reversal ... [though it called for] a more intense review when the district court declares a properly calculated sentencing range to be inconsistent with the Guidelines’ policy factors even for an ordinary case. Kimbrough, 128 S. Ct. at 575. If the concern instead is about the suitability of the sentence under the special conditions of a particular offender, the Court did not state that “closer review” is needed.
Therefore, the district court’s disagreement with the policy statement concerning age as applied to this defendant’s case is relevant to the sentencing decision. Consideration of a policy statement is among the factors under Section 3553(a). Disagreement with the policy should be considered along with other factors. See id. After deciding that a sentence outside the Guidelines range is justified, the court “must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of variance.” Gall, 126 S. Ct. at 597. Once those thought processes lead to a decision on the proper sentence, the court must explain itself in such as way as to permit “meaningful appellate review” and satisfy the need that sentencing fairness be perceived. Id.
Thoughtful new district court opinion adopting 1:1 crack/powder ratio
I am pleased to be able to post a new opinion from a district court that provides a thorough and thoughtful account of why the court has adopted a 1:1 ratio for crack sentence cases. Here is the openning paragraph and one key passage from US v. Gully, No. CR 08-3005-MWB (N.D. Iowa May 18, 2009):
Defendant Demetrius Darnell Gully was before the court on May 14, 2009, for sentencing on his guilty plea, without a plea agreement, to four charges of distributing less than 5 grams of crack cocaine, arising from “controlled buys” in January 2008, after a prior felony drug conviction in 2004. Three of the counts charged that the distributions occurred within 1,000 feet of a public playground or school. This “crack” case raises the following questions: (1) Whether the court has discretion to impose a 1:1 crack-to-powder ratio in sentencing; and (2) whether a 1:1 ratio is appropriate in this case. This written ruling addresses only these questions, although other matters were resolved at defendant Gully’s sentencing hearing....
[I]n this case, the prosecution offered no argument or logical reason why crack cocaine and powder cocaine should be treated differently, on the basis of the controlled substances themselves. Rather, the prosecution reiterated the policy line, which this court rejects, that different treatment of crack and powder is appropriate in this case because of this defendant’s conduct, i.e., that the crack-to-powder ratio is an appropriate proxy for other kinds of harm or criminal conduct perceived to come with crack trafficking. Again, this court believes that the appropriate course is to treat interchangeable forms of cocaine as equivalents, and to enhance punishment when additional criminal effects and use of weapons, for example, are present in a particular case.
Yet another different SCOTUS short-list
Marcia Coyle has this new piece in The National Law Journal headlined "An Alternative Short List for the High Court: Law professors say whom they would nominate to the U.S. Supreme Court. Are any on the president's radar?" Here is how the piece begins:
Is New York Law School's Annette Gordon-Reed, the Pulitzer Prize-winning law professor/historian, on President Obama's Supreme Court "short list"? Or, Alabama lawyer Bryan Stevenson, a MacArthur Foundation "genius" award recipient and tireless advocate on behalf of indigent defendants and prisoners? How about veteran consumer rights champion Alan Morrison and University of Notre Dame Law School Dean Patricia O'Hara?
Probably not. But they appear on the short lists of more than a dozen constitutional law and Supreme Court scholars asked by The National Law Journal to step into Obama's shoes to pick a nominee to succeed retiring Justice David Souter. These scholars, who vary ideologically and geographically, most often recommended four women who are reportedly on Obama's short list, giving the most nods to Pamela Karlan, a leading constitutional law scholar, voting rights authority and founding director of the Stanford Law School's Supreme Court Litigation Clinic.
Some prior posts on SCOTUS personnel:
"Executions Debated as Missouri Plans One"
The title of this post is the headline of this article from today's New York Times, which provides an effective primer on the state of death penalty debate in Missouri as the state gears up to execute convicted murderer Dennis Skillicorn early Wednesday morning. Here are a few excerpts:
Officials in this state are preparing to execute a prisoner for the first time since 2005, when criticisms about the state’s lethal injection method emerged and one doctor who carried out executions acknowledged being dyslexic and sometimes “improvising” when it came to the amounts of chemicals he administered.
That doctor will no longer take part, and a United States Supreme Court ruling last year upheld a lethal injection procedure similar to the one Missouri will use, but some lawmakers, including some prominent Republicans, say they have lingering questions about the state’s system of capital punishment.
The focus of those questions has shifted some, no longer centering on the method of execution but turning toward which prisoners are condemned and which are not, and whether those choices make sense. “I still favor the death penalty, but I just want to make sure we put the right people to death,” said State Representative Bill Deeken, a Republican, explaining why he last week proposed delaying the death penalty for two years more until a study can determine whether it is meted out fairly in this state. “At this point, we just do not know.”...
In the final days of the state legislative session in Jefferson City last week, a death penalty moratorium was rejected, but the House, which Republicans control, passed a provision calling for a commission to study the question.....House leaders say their chamber’s vote sent a signal to Gov. Jay Nixon, a Democrat in his first term, who has yet to issue a decision on Mr. Skillicorn’s request for clemency.
People here are deeply split over Mr. Skillicorn. His supporters say that while he participated in robbing Mr. Drummond and was convicted of murder, another man (now also awaiting execution) was the one who fired the gun that killed Mr. Drummond. They point to Mr. Skillicorn’s work in prison leading a hospice program, editing a magazine for death row inmates, and, in the view of even some prison workers, helping to create a calmer, safer atmosphere behind bars....
But State Representative Bob Nance of Excelsior Springs, the community not far from Kansas City where Mr. Drummond had lived, said Mr. Skillicorn “should hardly be held up as a poster child for what’s wrong with the death penalty.” Mr. Skillicorn was implicated for his involvement in other murders — though never, he says, as the gunman. He was convicted of second-degree murder in a 1979 burglary with accomplices in which a farmer was killed. And in the days after Mr. Drummond’s death, he and his accomplice went on a cross- country spree and, the authorities say, his accomplice shot and killed an Arizona couple. Mr. Skillicorn pleaded guilty to murder in that case.
Interesting deterrence study out of Italy (perhaps providing a basis for more clemencies)
This new press release from Science Daily, titled "Potential Criminals Deterred By Longer Sentences," reports on an interesting new published study on deterrence coming from Italy. Here are excerpts from the press release:
A new study published in the Journal of Political Economy sheds some empirical light on the question of deterrence. Using a recently passed Italian law as a natural experiment, the study found that former prisoners are less likely to return to jail if they expect longer sentences for future crimes....
Passed in 2006, Italy's Collective Clemency Bill presents a unique opportunity to study the deterrent effect of prison sentences, the authors say.... When the clemency bill was passed, it immediately released thousands of prisoners who had three years or less left on their sentences. The remainder of each prisoner's sentence was suspended, but not forgiven. The law stipulated that a former inmate who commits a new crime within five years will have the suspended portion of his sentence reinstated and added to the sentence for the new crime. As a result, a repeat offender can expect extra jail time equal to the suspended portion of his sentence — anywhere from one month to three years.
Using government data, the researchers looked at the recidivism rates of these former inmates for the first seven months after their release. They found that those with longer suspended sentences — and therefore longer expected sentences for new crimes — were less likely to be re-arrested than those with shorter suspended sentences....
The deterrent effect was consistent across age groups, and among men and women, though 95 percent of the sample was male. "This means that a policy a commuting actual sentences in expected sentences significantly reduces recidivism," Dr. Vertova says. "A mass release of prisoners can be effective in reducing their propensity of re-committing crimes if, when a released individual gets convicted of a new crime, his normal sentence is increased by the time that was pardoned because of the early release."
There was one important exception to the deterrent effect, however. Recidivism rates among those whose original crime was more serious were essentially unaffected by the length of their suspended sentence. That finding suggests that "more dangerous inmates are not deterred," the authors write. The researchers also caution that their results only measure deterrence on those who have already served time in jail. "Indeed, it is not clear whether these results can be to individuals who have never received prison treatment."
The full study can be accessed at this link, and here is the paper's official abstract:
The Collective Clemency Bill passed by the Italian Parliament in July 2006 represents a natural experiment to analyze the behavioral response of individuals to an exogenous manipulation of prison sentences. On the basis of a unique data set on the postrelease behavior of former inmates, we find that 1 month less time served in prison commuted into 1 month more in expected sentence for future crimes reduces the probability of recidivism by 0.16 percentage points. From this result we estimate an elasticity of average recidivism with respect to the expected punishment equal to −0.74 for a 7‐month period.
The implications of this interesting study are potentially quite profound, especially at a time when states are struggling with over-crowded prisons and academics are debating "second look" sentencing reforms. This study suggests governments might be able to save money AND reduce the probability of recidivism by granting conditional clemencies to non-violent offenders.
Examining environmental sentences after Booker
Professor Michael O'Hear has this new article on SSRN, titled “Bark and Bite: The Environmental Sentencing Guidelines after Booker.” Here is the abstract:
The federal sentencing guidelines for environmental crimes bark loudly, calling for sentences of imprisonment for all but the most trivial of environmental offenses. Although the terms of imprisonment are not long, the prospect of even a short period of incarceration is doubtlessly capable of getting the attention of the white-collar professionals who typically commit environmental offenses. Research I conducted in 2004, however, indicated that the bark of the environmental guidelines was considerably worse than their bite. Judges “departed” below the applicable guidelines range in an unusually high percentage of environmental cases, barely one-third of convicted environmental defendants received prison sentences, and only about forty percent of prison sentences exceeded one year in length.
Although the data contained in my 2004 study were striking at the time, ensuing developments might appropriately raise questions as to their reliability today. For instance, the Supreme Court fundamentally restructured federal sentencing law through its 2005 decision in United States v. Booker, which changed the status of the federal sentencing guidelines from mandatory to advisory.
With Booker and other developments in mind, the present article updates the data from my earlier study, demonstrating a surprising level of continuity from the Clinton to the Bush eras, and from pre-Booker to post-Booker. Simply put, despite notable institutional and legal changes, the bark of the environmental guidelines remains considerably worse than their bite.
Finally, the article considers normative implications of the bark/bite gap. In light of the overarching purposes and premises of the federal sentencing system, the data provide important support for a fundamental redesign of the environmental guidelines. Failing such a redesign by the Sentencing Commission, the data should be regarded by the courts as providing some support for arguments by individual defendants that particular provisions of the environmental guidelines should not be applied to them.
May 18, 2009
"Pot Activist Sentenced To 10 Years For Growing 1,000 Plants"
The title of this post is the title of this interesting article reporting on a federal sentencing from California. Here are some more details:
A federal judge in San Francisco Monday sentenced a Lake County man to 10 years in prison for growing more than 1,000 marijuana plants, saying the marijuana activist appeared to "want to be a martyr for the cause."
The sentence for Charles "Eddy" Lepp, 56, was the mandatory minimum under federal law for growing more than 1,000 plants. U.S. District Judge Marilyn Patel said Lepp didn't qualify for a so-called "safety valve" exception with a lesser sentence because he testified at his trial last fall that he was a proud leader of others who grew marijuana on his land.
Patel told Lepp, "I think Mr. Lepp is very proud of what he's been doing. The problem is that now unfortunately, Mr. Lepp, it's caught up with you." "Maybe you want to be martyr for the cause," Patel said. "That will be your lot."
Patel said she thought the length of the sentence was excessive, but said it would be up to Congress to change the law.
Lepp, a disabled Vietnam veteran who says he is now a Rastafarian minister, was convicted in Patel's court in September of conspiring to grow and growing more than 1,000 plants on 23 acres he owns adjacent to state Highway 20 in Upper Lake.
Lepp had contended the marijuana was grown for medical use under California's compassionate use law and for spiritual practice in his Rastafarian religion. But he was not allowed to make either argument at his trial. U.S. drug laws don't allow state medical marijuana laws to be used as a defense in federal prosecutions.
Lepp said at the sentencing, "I've done all I can to comply with the laws and rules of the state in which I reside." He said he informed local authorities in 2004 that his land would be used to enable patients who didn't own land to grow marijuana for medical purposes."
Prosecutor David Hall told the judge, "I've never seen a man work harder to get time in prison than Mr. Lepp has." Lepp's attorney, Michael Hinckley, said outside of court that the sentence was "tragic" and said he will appeal.
Any last-minute predictions about the Lori Drew cyber-bullying case?
As detailed in this new Los Angeles Times posting, Lori Drew, who was "convicted of committing a hoax on the social networking site MySpace that led to the suicide of a 13-year-old girl, is scheduled to be sentenced this afternoon in federal court in downtown Los Angeles." As I have highlighted in prior posts, there are lots of interesting legal issues and sentencing questions raised by this case. In addition to the basic question of what sentence Drew might/should be given for her three misdemeanor convictions, there is the preliminary issue of whether her convictions should be dismissed and the procedural issue of whether her crime has "victims" who should be permitted to testify at her sentencing hearing.
Just for kicks, I will make some last-minute predictions (that might soon look silly): I predict that Drew's motion to dismiss is denied, that the victims get to testify at her sentencing, and that Drew gets a sentence of a few months of home confinement. But this is just wild speculation. Any other guesses
Some related prior posts:
- Friday forum: What sentence would you impose on Lori Drew, the MySpace bullying defendant?
- Juror says publicly that she wanted MySpace bullying defendant sent to prison
- Very different sentencing recommendations in the Lori Drew cyberbullying case
- Prosecutorial power, victims rights, sentencing judgments and judicial empathy
UPDATE: Apparently the District Court will keep Lori Drew's legal limbo for at least another 6 weeks. As this new Wired report now explains, following "an hour of discussion with prosecutors and Drew’s defense attorney, U.S. District Judge George Wu indicated he was still weighing a defense motion to overturn the jury verdict in the case and that he needs to review transcripts from the trial to weigh both the motion to overturn and the sentencing. Sentencing is now set for July 2nd."
Interesting group of cert grants from SCOTUS
As noted in this post last week, the SCOTUSblog folks had about a half-dozen criminal law cases on their list of “Petitions to Watch.” Though I have not yet figured out the fate of all of these watched cases, the list of four granted cases today have lots of interesting dimensions. The basics are detailed here at SCOTUSblog:
The Court has granted certiorari in four cases today: Free Enterprise Fund and Beckstead and Watts, LLP v. Public Company Accounting Oversight Board, et al. (08-861) Black, et al. v. United States (08-876); Wood v. Allen (08-9156) [limited to questions 1 and 2]; and Beard v. Kindler (08-992).
I welcome comments on whether any of these cases should be of extra interest to sentencing fans.
UPDATE: This SCOTUSblog post provides these additional details on the three criminal case grants:
The Court granted three [criminal] cases, including a review of the fraud conviction of a former media mogul, Canadian Conrad M. Black, in a celebrated case involving allegedly illegal executive compensation. The case is Black v. U.S. (08-876).
Also granted was Beard v . Kindler (08-992), on the proper treatment in a federal habeas corpus proceeding of state procedural rules that are discretionary rather than mandatory. Justice Samuel A. Alito, Jr., took no part in that order. The Court also agreed to hear a death penalty case, Wood v. Allen (08-9156), with the grant limited to the first two questions. The Wood case tests the failure of an inexperienced defense lawyer to present in a capital sentencing proceeding evidence of the defendant’s severe mental impairment.
Kent at C&C has this long post providing lots of helpful context for the Beard v . Kindler grant.
For a very different SCOTUS short list...
be sure to check out this segment, titled "Supreme Court Choices You Haven't Heard Of," from NPR's "Weekend Edition Sunday." Among the names I heard on the NPR nominee list of choices I had not heard was my co-author Nora Demleitner, who is now Dean at Hofstra University School of Law. Awesome!
I would be very surprised (and very pleasantly surprised) if Nora was named to the Supreme Court now, in part because she is still very young. But I am sure she would be a fantastic jurist and it would be really nice and valuable to have someone on the Court who knows a lot about sentencing law and policy. Notably, Newsday noticed Nora's name on NPR's novel short list, so maybe she will start getting even more buzz soon.
Meanwhile, I am wondering if and when we might get a nominee this week from the White House. I would really like to be able to transition from all the speculations to in-depth examination of an actual nominee, but I am fearing we still may have a while to wait.
Some prior posts on SCOTUS personnel:
- Insider myopia and the diverse benefits of a short bench
- Does SCOTUS need a trial judge?
Brave New Justice and sentencing issues
Are there broader lessons to be drawn from Michael Vick's up-coming prisoner reentry story?
I cannot listen to sport radio without being reminded of an interesting criminal justice story unfolding this week: Michael Vick is scheduled to be released from the federal prison in Leavenworth after serving about 19 months of his 23-month federal sentence. This local article provides some of the high-profile re-entry details for Vick:
When Michael Vick gets out of prison later this week, he'll join about 120,000 other federal ex-cons under court-ordered supervision. Statistics show that about a third will end up back in prison.
Vick is scheduled to leave the federal penitentiary at Leavenworth, Kan., either Wednesday or Thursday. He'll arrive in Hampton [Virginia] and be immediately placed in home confinement. A federal community corrections officer will be able to monitor his every move, with the help of an electronic tracking device.
Felicia Ponce, a spokeswoman for the U.S. Bureau of Prisons, said Vick will have to follow a strict set of rules. Some of the rules will be standard, such as a curfew, and some tailored for him. "They look at the individual's security needs, and they develop a plan to help them integrate back into the community," she said.
Being on home confinement isn't the "peaches and cream that people think it is," said local defense attorney Andrew Protogyrou. "You're not allowed to go out to dinner. You're not allowed to go to a friend's house. The probation officer drops by unexpectedly. There is no freedom other than what the probation officer says you can do."...
Vick will live, at least initially, at 21 Haywagon Trail, Hampton, with his fiancee, Kijafa Frink, and their children. He'll be allowed to travel to his job with the construction firm W.M. Jordan Co. and to his probation appointments and court appearances.
His attorneys say he plans to perform volunteer community service, even though the court has not obligated that. He wanted to work for Habitat for Humanity, but the nonprofit denied his request. "We evaluated the request but have determined that we will not have a suitable work site available at the time of his release from prison," said Janet V. Green, executive director of Habitat's Peninsula office....
While he is free, Vick must remain on his best behavior. When his two months of confinement are up, he'll be free, but on three years of supervised release, or probation, which comes with new rules and restrictions.
Standard conditions include not being able to travel outside of eastern Virginia without approval, maintaining employment, staying away from known criminals, and meeting with his probation officer regularly. The judge who sentenced Vick also ordered additional conditions prohibiting him from incurring debt and mandating participation in a substance abuse treatment program. In addition, the judge ordered Vick not to "engage in the purchase, possession or sale of any canine." If Vick violates the terms of his supervision, he could be sent back to prison for the remainder of the three years he's on probation.
Not discussed in this article, but the topic of lots of other media attention, is whether NFL Commissioner Roger Goodell will lift Vick's indefinite suspension and also which NFL team will give Vick a second chance on his football career. Notably, according to this blog post, ESPN has wall-to-wall coverage planned for Vick's prison release.
As hinted in the title to this post, I think there are a lot of interesting (and blog-worthy) reentry stories related to this high-profile case. But, because Vick is a unique person who committed a unique set of federal crimes, these stories may not have much broader relevance. So, dear readers, I ask you to help me figure out whether I ought to join ESPN in doing wall-to-wall coverage or should instead just leave this story to the sports pages.
Another example of the long slog of seeking death in California
The Los Angeles Times has this interesting new article on the administration of the death penalty in California, which is headlined "'Dysfunctional' death penalty racks up 28-year, $5-million tab: And that's just for one case. Michael Ray Burgener's death sentence in the murder of a 7-Eleven clerk has been overturned multiple times, and lawyers say his appeals could span another 15 years." Here are a few details:
Burgener, sentenced to death for murder in 1981, has yet to complete his automatic appeal before the San Francisco-based California Supreme Court. His case has ping-ponged from trial courts to appeals courts over 28 years, and he still does not know whether he will be sentenced to die from lethal injection or spend the rest of his life in prison. Given how long his appeals are taking, there is not likely to be any practical difference....
Burgener's tale illustrates why executions remain relatively rare in California and why old age is the most common cause of death on death row. He was sentenced to death in the 1980s, when capital punishment cases began to escalate and courts grew overwhelmed. The pace of justice, always slow when it comes to the state's death penalty, can grind to a near halt when new judges and new lawyers take over an old case.
The judge who presided at Burgener's penalty retrial is dead. The judge who replaced him is now dead. The attorney who defended Burgener at trial is dead. And the prosecutor who won the guilty verdict no longer works for the Riverside County District Attorney. None of the state high court justices who heard his first appeal are on the court anymore. The condemned man has outlasted them all.
Lawyers estimate that Burgener, 58, may have 15 years of appeals left if he is again sentenced to death. His case would then return to the state high court for review. The court also would have to review a constitutional challenge of his sentence. If that sentence is denied, Burgener could start all over again in federal court.
May 17, 2009
Effective primer on sex offender residency restrictions
Now available via SSRN is this piece, titled "Residency Restrictions for Convicted Sex Offenders: A Popular Approach on Questionnable Footing," that provides an effective review of the law and policy of sex offender residency restrictions. Here is the abstract:
Municipalities across the country are adopting residency restrictions prohibiting convicted sex offenders from living in close proximity to places that children are likely to frequent. The number of sex offenders is large -- by one report there are some 550,000 registered sex offenders nationally. As more and more local and state governments adopt residency restrictions, municipal lawyers and planners are increasingly finding themselves at the center of the debate. The literature and discussions in case law suggest that residency restrictions do not reduce recidivism, do not offer any real protection for potential victims, are generally not legally defensible, and thwart efforts to reform offenders and return them to society. This however, is ignored by the emotional demands of community residents to enact these laws to “protect vulnerable children” from convicted offenders. As a body is case law is starting to develop concerning these laws, it is becoming apparent that municipalities may have difficulty defending residency restrictions. This article provides a brief review of the literature and then discusses constitutional and statutory issues through an examination of recent caselaw.
Notable materials from the Missouri Sentencing Advisory Commission
Though I am usually able to keep up with most of the activities of the US Sentencing Commission (and most of the stuff posted on its website), I never have enough time to review (and praise) all the interesting and important work being done by many state sentencing commissions. Fortunately, helpful readers sometimes alert me to some of this work appearing publicly on state commission websites.
For example, thanks to a helpful reader, now I can note (and praise) these materials recently added to the official website of the Missouri Sentencing Advisory Commission:
In addition to encouraging folks interested in state sentencing developments to check out all these goodies from the Missouri Sentencing Advisory Commission, I also encourage folks involved in state sentencing developments to keep alerting me to notable reports and materials.
Interesting sentencing doings at this week's ALI annual meeting
As regular readers may know, The American Law Institute has been working on a revision of the sentencing provisions of the Model Penal Code for nearly a decade. And, as detailed in this tentative agenda, this week's annual meeting of the ALI includes another presentation and discussion of a draft of the new proposed MPC sentencing provisions. (Background on the ALI sentencing project can be accessed at this link.)
As the 2009 meeting agenda also shows, however, there is an even more notable sentencing item on the ALI's schedule: the presentation of a capital punishment report and a "vote on Council recommendation that ALI withdraw Model Penal Code § 210.6." As MPC fans know, § 210.6 is the provision of the MPC that sets forth a whole bunch of rules for the administration of the death penalty.
Valuably, the ALI has made publicly available at this link its "Report of the Council to the Membership of The American Law Institute On the Matter of the Death Penalty." This report is quite interesting for a variety of reasons, and I may comment on its substance in future posts. For now, however, I want to set forth its trio of recommendations to the ALI membership:
A. The Council recommends to the ALI membership that the Institute withdraw § 210.6 of the Model Penal Code. When a motion to that effect is presented at the 2009 Annual Meeting, the Council recommends that those present vote in favor.
B. The Council further recommends that if a motion that the Institute endorse or oppose the abolition of capital punishment is presented for a vote at the 2009 Annual Meeting, the members present vote against that motion.
C. The Council reports that there are no plans to begin an ALI project to draft language that would revise or replace § 210.6 or otherwise address the subject of capital punishment.