Sentencing Law and Policy

Intriguing Third Circuit case on considering hearsay in supervised release revocation

The Third Circuit has an intriguing little procedural ruling today in US v. Lloyd, No. 08-2513 (3d Cir. May 27, 2009) (available here).  Here are the basics of the ruling and a few of the doctrinal highlights:

At issue in this appeal is hearsay evidence presented during Appellant Ashbert Lloyd’s supervised release revocation hearing....

The question presented is whether Lloyd’s sentence was based on improper hearsay evidence. Since the Federal Rules of Evidence do not apply in revocation hearings, see FED. R. EVID. 1101(d)(3), hearsay that would be inadmissible at a criminal trial may support a judge’s decision to revoke supervised release.  This does not mean, however, that hearsay evidence is ipso facto admissible. Due process requires that supervised releasees retain at least a limited right to confront adverse witnesses in a revocation hearing.  See Morrissey v. Brewer, 408 U.S. 471, 488-89 (1972).

In Morrissey, the Supreme Court held that a parolee’s liberty cannot be revoked without due process and the minimum requirements of a revocation proceeding include “the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).” 408 U.S. at 489.  This limited right to confrontation stems from the Fifth Amendment’s Due Process Clause, not from the Confrontation Clause of the Sixth Amendment. See Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973)....

In sum, because Lloyd’s aggravated domestic battery violation was supported solely by unreliable hearsay and the Government makes no attempt to show cause for the declarants’ absence, we will vacate Lloyd’s sentence and remand for resentencing.

A quick thought on Judge Sotomayor's sentencing work in Cavera

As I noted in this prior post, Judge Sotomayor is a unique Supreme Court nominee because she personally sentenced federal defendants as a federal district court judge and has also has personally experienced the entire Apprendi-Blakely-Booker-Gall change in federal sentencing as a federal circuit court judge.  Moreover, only six months ago, Judge Sotomayor had an opportunity to share her sentencing insight and wisdom through a notable separate opinion in US v. Cavera, No. 05-4591 (2d Cir. Dec. 4, 2008) (available here) (Sotomayor opinion starts at page 63 of pdf).

I took the time last night to re-read Judge Sotomayor's separate opinion in Cavera.  For lots of reasons, Cavera is a very hard case that presents a lot of the toughest jurisprudential issues that the Supreme Court dodged in its Booker-Rita-Kimbrough-Gall discussion of advisory guideline sentencing and reasonableness review.  And, for lots of reasons, I was extremely impressed by Judge Sotomayor's judicial craftmanship in her Cavera opinion.  (Aside: Should the term be judicial craftwomanship for Judge Sotomayor's work?)

I hope in future posts to discuss in more detail some of the most notable aspects of Judge Sotomayor's Cavera opinion.  For now, I just wanted to indicate that I consider her Cavera opinion a fascinating and remarkable piece of judging.  The opinion should be read closely not only by sentencing fans, but by everyone seeking a truly informed perspective on the type of jurist that Judge Sotomayor now is.

Exploring execution competency and capacity to assist counsel

I just noticed this piece on SSRN titled "The Afterlife of Ford and Panetti: Execution Competence and the Capacity to Assist Counsel." Here is the abstract:

The capacity to assist counsel and communicate a defense once held a central place in assessing competence for execution.  Since Ford v. Wainwright (1986), however, courts have discarded this measure, viewing Justice Powell’s concurring opinion, which required only that a prisoner understand the execution as mortal punishment for a capital crime, as the Eighth Amendment rule.  In a significant development, the Supreme Court’s decision in Panetti v. Quarterman (2007) — its first interpreting Ford — sends notice that Justice Powell’s statements on the substantive standard are not Ford's rule, providing a long overdue opportunity to address whether executing prisoners with severe mental illness who lack the capacity to assist counsel contravenes evolving standards of decency.  Current concerns with the execution of innocent prisoners and difficulties determining execution competence since Ford support reinstating the capacity to assist counsel in the Eighth Amendment test.

Juve LWOP and animal porn get top billing as media discuss SCOTUS docket

With the naming (finally!) of a new SCOTUS nominee, the press is now started to talk about the cases that Judge Sonia Sotomayor would be immediately facing if she soon becomes Justice Sotomayor.  The first two cases noted in this Reuters review should be very familiar to regular readers of this blog:

Souter's retirement takes effect when the court term ends in late June. Obama has said he would like his choice to be approved by the Democratic-controlled Senate before the court returns to the bench in October after its summer recess....

For its coming term that begins in October, the court already has agreed to decide several major cases and also has pending appeals in a number of important cases. They include:

* whether a sentence of life in prison for juveniles who commit crimes other than murder violated the constitutional ban on cruel and unusual punishment.

The ruling could affect more than 2,500 individuals in the United States serving sentences of life imprisonment for crimes done before they turned 18 years old, human rights groups said.  The two Florida cases the Supreme Court will hear and decide involve a 13-year-old convicted of raping an elderly woman and a 17-year-old who took part in an armed home-invasion robbery while on probation for an earlier violent crime.

* whether a federal law that makes it a crime to sell videos of animals being tortured or killed violated constitutional free-speech rights.

The U.S. Justice Department defended the 1999 law that Congress adopted in an effort to crack down on videos like those depicting dog fights.  It compared animal cruelty to child pornography, which the Supreme Court has said does not qualify for free-speech protection.

Prior post on the SCOTUS nomination of Judge Sotomayor:

• President Obama to nominate Judge Sonia Sotomayor for Supreme Court
• Notable background parallels between Judge Sotomayor and Justice Alito
• Some very early, very brief sentencing reflections on Judge Sotomayor

The latest sentencing news from MTV

MTV has this new report on the start of rapper TI's federal prison sentence.  Here are some particulars:

T.I. turned himself in Tuesday (May 26) at an Arkansas federal prison, where the rapper will begin serving a 366-day sentence stemming from his 2007 arrest for attempting to illegally attempting to purchase firearms in Atlanta.

According to several reports, Tip is now in custody at the low-security wing of the Forrest City Federal Correctional Complex, where the rapper will circulate with the rest of the inmates without preferential treatment....

Last week, the rapper's lawyers had requested a two-week delay in the sentence, and hoped the rapper could serve his term at a facility closer to his home in Atlanta. That request was denied on Friday.

Thoughtful discussion of crime, punishment and restorative justice

A helpful reader altered me to this terrific new piece, titled "America's Prisons: Is There Hope?", appearing in the June 11, 2009 issue of The New York Review of Books.  Though the piece in various ways keeps returning to restorative justice themes, it covers a broad array of ideas and has many terrific elements and passages. Here is just one of many sections that merits the spotlight:

According to one estimate, 23 percent of the discrepancy in black/white incarceration rates could be eliminated if blacks stayed in school as long as whites, and that was in 1980, before the thirty-year surge in black incarceration got underway.  An even greater effect was seen with violent crime, such as murder and assault.  According to the authors of this study, a one percent increase in the graduation rate could save $1.4 billion that would otherwise be spent keeping these men behind bars.

A high school diploma itself seems to help keep black men out of trouble.  The likelihood of incarceration drops fourfold among black high school graduates compared to those who make it only to tenth or eleventh grade.  It is unlikely that there is anything special about the twelfth-grade curriculum that would explain this.  However, graduation may indicate a relatively positive attitude toward society and toward oneself that is more important for keeping black youths out of trouble than any skill or knowledge acquired in school. Some studies suggest, remarkably, that a diploma may matter more than one's income, or even whether one has a job at all.  Prison education programs that allow inmates to earn college degrees have also been associated with a drop in recidivism.  Thus the decision of former New York governor George Pataki to end these programs in the mid-1990s may well have had consequences for public safety.

Governor Jindal unwilling to take on costs of sex offender confinement proposals

This local AP story out of Louisiana provides yet another example of how tight budget times will always put a squeeze on efforts to get extra tough on criminals.  This AP piece is headlined "Jindal administration scraps key sex offender bill," and here are excerpts:

Gov. Bobby Jindal's administration scrapped the centerpiece of his sex offender proposals on Tuesday after deciding the post-prison "civil commitment" program would be too expensive, a health department spokeswoman said.

Lauren Mendes, a spokeswoman for the Department of Health and Hospitals, said the proposal was dead for the current legislative session.  "It is a concept that DHH and the governor's office do support and will revisit when it's more financially viable for Louisiana," she said.

Rep. Fred Mills' bill would have provided treatment for certain sex offenders after their release from prison. Mills said the program would require about $12 million over five years — for surveillance equipment, medication and psychiatric evaluations — an expensive price tag in a year of budget cuts.

The idea was geared toward offenders deemed most likely to commit more crimes after being released. Jindal is backing several bills this year to crack down on sex offenders, but Mills' was the most ambitious....

Mills said initial estimates for the civil commitment program — $26,000 annually per sex offender — turned out to be low compared to a similar program in Texas. Most sex offenders in the program would also require the treatments for life, Mills said, compounding the future costs.

Mills told the House Appropriations Committee that he agreed with the governor's office and DHH that the bill is too costly.  "Between all of us, we got together and said, 'It's a good policy, but let's try it another year,'" said Mills, D-Parks.

Some related recent posts:

• "States pull back after decades of get-tough laws"
• Notable report on the impact of the prison economy in the Sunshine State
• "Ohio lawmakers mull sweeping reform to cut prison populations"
• What should Florida and other states do with all their old sex offenders?
• "Is 500 serious crimes worth the freedom of 50,000 offenders? That's my question."
• FSR Issue 21.2: Sex Offenders: Recent Developments in Punishment and Management

Seeing already some consequences of having a record on sentencing (and the Second Amendment?)

I find it quite telling, though not especially surprising, that folks eager to find things they dislike about President Obama's SCOTUS nominee are already focused on her sentencing record and her possible views on the Second Amendment.  Specifically, I just found these posts from folks at the National Review, both of which reference Judge Sotomayor's work as a sentencing judge:

• Sonia Sotomayor, Soft on New Jersey Corruption

• A Drug Dealer Is 'In Part a Victim of the Economic Necessities of Our Society'?

Meanwhile, as evidence by the posts liked below, a few folks at The Volokh Conspiracy have diverse views about how we might read Judge Sotomayor's (non)record on the Second Amendment:

• Sonia Sotomayor versus the Second Amendment

• More on Sotomayor and the Second Amendment

UPDATE:  I am pleased to see Corey Yung is not only back to blogging, but also has returned with lots of data about Judge Sotomayor's judicial record.  Everyone should be sure to check out these new posts at Sex Crimes:

• Is Sotomayor an Activist? Not by my Measure

• Sotomayor's Criminal Law Record

Interesting new paper on victims rights to restitution in Illinois

I just notice on SSRN this new paper titled "Monetary Remedies for Victims During Illinois Criminal Cases." Here is the abstract:

The Illinois Crime Victim’s Rights Amendment, added to the Illinois Constitution by the legislature and the voters in 1992, includes a 'right to restitution'.  The amendment spurred some new legislation, now within the Rights of Crime Victims and Witnesses Act.  But most crime victims still have little chance for restitution or other monetary remedies during criminal cases. Other remedies include recoveries from a state fund guided by the Crime Victims Compensation Act and recoveries ordered at sentencing under the Unified Code of Corrections Act.  The paper first examines the Illinois constitutional right to restitution and the three separate acts recognizing possible monetary remedies for crime victims during criminal cases. Upon concluding that the constitutional right to restitution has not been adequately implemented by the legislature or the courts, the paper looks to other American state approaches to crime victim recoveries.  For Illinois it proposes that the three acts be combined into a single statutory scheme, organized by the stages in a criminal case.  Integrated provisions would held better secure the goal of enhanced recoveries by crime victims established by the overwhelming majorities of constitutional amendment drafters and voters.

Because I am a fan of victims' restitution rights at sentencing and also a fan of financial punishments, I hope this paper's efforts to better secure the goal of enhanced recoveries by crime victims is successful in Illinois and elsewhere.

Seeking on-the-scene reports from the USSC regional hearing in California

Though my cynical, snarky side is inclinded to say that California is the wrong state in which to hope to find sentencing wisdom, my hopeful pleasant side is convinced that US Sentencing Commission will get lots of great insights and input over the next two days at its public hearing taking starting tomorrow morning at Stanford Law School.  This official press release reports on the basics of this important event, and I noted in this recent post that the USSC is asking all the right questions about the past, present and possible future of the federal sentencing system. 

This link provides the agenda and the list of impressive persons scheduled to testify at the USSC hearing, and I am hopeful that the Commission will provide additional links to submitted written testimony at some point.  In the meantime, I am eager to get any and all on-the-scene reports from the USSC regional hearing from anyone who is in attendance. 

Some very early, very brief sentencing reflections on Judge Sotomayor

Though I doubt I will do too much SCOTUS nominee blogging at least until the Senate confirmation hearing, I cannot resist some very early, very brief sentencing reflections on Judge Sonia Sotomayor.  So here goes:

1.  Judge Sotomayor has personally sentenced federal defendants as a federal district court judge, and did so for a number of years when the guidelines were mandatory.  I do not know if we should try to read much into her record as a federal sentencing judge in the 1990s, but the mere fact that she has a record as a federal sentencing judge sets her apart from every Justice to serve on the Court in my lifetime.

2.  Judge Sotomayor has personally experienced the entire Apprendi-Blakely-Booker-Gall change in federal sentencing as a federal circuit court judge.  And, six months ago, Judge Sotomayor wrote a notable separate opinion in US v. Cavera, No. 05-4591 (2d Cir. Dec. 4, 2008) (available here) (Sotomayor opinion starts at page 63 of pdf), in which she explains her vision of the post-Gall world.

3.  Judge Sotomayor does not have much personal experience with death penalty issues because very few capital cases ever come before the Second Circuit.  Because the death penalty is a big part of the SCOTUS docket, her potential new job will give her a new need to think a lot about the modern administration of capital punishment.

4.  Judge Sotomayor, assuming she is confirmed, will have to jump right into the dynamic Eighth Amendment debate that will surround Graham and Sullivan, the two juve LWOP cases from Florida recently taken up by the Supreme Court.  In her very first term, she could have a profoundly significant role in a profoundly significant part of the Supreme Court's criminal constitutional jurisprudence.

Prior post on the SCOTUS nomination of Judge Sotomayor:

• President Obama to nominate Judge Sonia Sotomayor for Supreme Court
• Notable background parallels between Judge Sotomayor and Justice Alito

A few great lines (from the departing Justice) in today's little sentencing case

Though not really a sentencing case as much as a statutory interpretation decision, the Supreme Court's unanimous decision today in Abuelhawa v. United States, No. 08-192 (S. Ct. May 26, 2009) (available here), is fundamentally about sentencing consequences. And the Court's opinion, per Justice Souter, has one comical sentence and one notable footnote that I might highlight here.

First the sentence: "When the statute was enacted, the use of land lines in drug transactions was common, and in these days when everyone over the age of three seems to carry a cellphone, the Government’s interpretation would skew the calibration of penalties very substantially."  Though I happen to know of at least a few folks over the age of three who do not carry a cellphone, I still think the turn of phrase here is wonderful.

Now the footnote:

The Government’s suggestion that a result like this [namely a "twelve-fold quantum leap in punishment for simple drug possessors"] is not anomalous because a prosecutor could exercise his discretion to seek a lower sentence, seeTr. of Oral Arg. 41, simply begs the question.  Of course, Congress legislates against a background assumption of prosecutorial discretion, but this tells us nothing about the boundaries of punishment within which Congress intended the discretion to be exercised; prosecu-torial discretion is not a reason for courts to give improbable breadth tocriminal statutes.  And it ill behooves the Government to invoke discretionary power in this case, with the prosecutor seeking a sentencing potential of 24 years when the primary offense is the purchase of two ounces of cocaine.  For that matter, see id., at 41–43 (concession by Government that current Department of Justice guidelines requireindividual prosecutors who bring charges to charge the maximum crime supported by the facts in a case).

I am not sure this dicta about prosecutorial discretion is of any formal consequence, but I always enjoy when courts sensibly reject self-serving prosecutorial arguments that prosecutorial power should be expanded because prosecutors are unlikely to make too much use of such expanded power.

A few new criminal law opinions from SCOTUS

Though the nomination of Judge Sonia Sotomayor will ensure that the future of the Supreme Court gets most of the headlines, the Justices did hand down a few opinions this morning.  And, intriguingly, all three opinions issued today have criminal law dimensions.

As always, SCOTUSblog and How Appealing are the places to go for all the basics and key links.  Here are the essentials from this post at SCOTUSblog:

The Court has released the opinion in Abuelhawa v. United States (08-192) . The decision below, which held for is the United States, is reversed and remanded in a unanimous opinion by Justice Souter, available here.

The Court has released the opinion in Montejo v. Louisiana (07-1529).  The decision below, which held for the state, is vacated and remanded in a 5-4 opinion by Justice Scalia, available here.  Justice Alito filed a concurring opinion, in which Justice Kennedy joined. Justice Stevens filed a dissenting opinion joined by Justice Souter and Ginsburg, and by Justice Breyer except for footnote 5.  Justice Breyer filed a dissenting opinion.

The Court has released the opinion in Haywood v. Drown (07-10374). The decision below, which held for the state, is reversed and remanded in a 5-4 opinion by Justice Stevens, available here. Justice Thomas filed a dissenting opinion,  joined as to Part III by Chief Justice Roberts and Justices Scalia and Alito.

How Appealing at the end of this post provides links to this early press coverage of the rulings:

In early news coverage, The Associated Press has reports headlined "Court: Suspect must ask for atty to get protection"; "Court says states can't bar some rights suits"; "Court: Phone drug buys shouldn't bring extra time"

I hope to find time during this busy day to figure out if anything the current Supreme Court has said today should be of special interest for sentencing fans.

Notable background parallels between Judge Sotomayor and Justice Alito

Though a lot is likely to be said and written about how different SCOTUS nominee Sonia Sotomayor is from other members of the Supreme Court, I am struck by some surprising background parallels between Judge Sotomayor and Justice Samuel Alito.

Specifically, after growing up relatively modestly, both Judge Sotomayor and Justice Alito attended Princeton University and then went directly on to Yale Law School.  And, like Justice Alito, Judge Sotomayer's first big job was as a prosecutor — though Justice Alito worked in the federal system as an assistant US attorney, while Judge Sotomayor was an assistant district attorney working under the famed Robert Morgenthauin Manhattan.  In addition, both Judge Sotomayor and Justice Alito were first named (at quite a young age) to the federal bench by President George H.W. Bush — though Justice Alito went straight to the Third Circuit, while Judge Sotomayor was placed on the SDNY.

So, while everyone else talks about how different Judge Sotomayor is from other Justices, I will be thinking about what the notable parallels between Judge Sotomayor and Justice Alito — in particular their shared history as prosecutors — might mean for the criminal justice side of the SCOTUS docket.

Prior post on the SCOTUS nomination of Judge Sotomayor:

• President Obama to nominate Judge Sonia Sotomayor for Supreme Court

President Obama to nominate Judge Sonia Sotomayor for Supreme Court

According to multiple press sources including this New York Times posting, "President Obama will nominate Judge Sonia Sotomayor of the United States Court of Appeals for the Second Circuit as his first appointment to the court ... and has scheduled an announcement for 10:15 a.m. at the White House."  Though I am a bit disappointed that President Obama's pick is a sitting circuit judge, I am pleased that, if he had to pick a judge, he picked one with some district court experience and also with lots of other diverse factors in her background.

Tom Goldstein in this post at SCOTUSblog has the basics on what's next:

The White House will announce a Supreme Court nominee at 10a.m.  The Senate Judiciary Committee will likely hold hearings in the third week of July, permitting written committee questions the following week and a floor vote before Congress leaves for its summer recess on the weekend of August 8.  Absent the discovery of an ethical transgression, the Democratic majority on the Senate guarantees confirmation, so the new Justice will take her seat when the Court opens its 2009 Term on October 5.

Now that we have a nominee, I hope to do some sentencing blogging about her.  So, I welcome any and all information about Judge Sotomayor's sentencing history, both as a district judge and as a circuit judge.  For example, do we have any basis on which to predict what she might think about what the Eighth Amendment could mean for juve LWOP?

Some prior posts on SCOTUS personnel and sentencing issues:

• The latest SCOTUS nominee news and seeking some predictions (or dreams)
• "For the Supreme Court, Younger Isn’t Necessarily Better"
• An op-ed call for a district judge to become a Justice
• Is career diversity a bad thing in the highest court in the land?
• Reflections on the politics of SCOTUS and personhood of its members
• Does SCOTUS need a trial judge?
• Developing a SCOTUS short list of district court judges
• Brave New Justice and sentencing issues

"Allegations of Impropriety Surround Parole Commission"

The title of this post is the headline of this new article from the Washington Post.  Nobody sentenced in federal courts has been subject to the parole system in nearly two decades because parole was formally abolished as part of the Sentencing Reform Act.  Nevertheless, as the Post article details, even a down-sized government agency can be the source of mysery and scandal inside the Beltway.  Here the start of a long article:

Like Washington's most famous tale of intrigue, this one includes the surreptitious entry of an office on a weekend. The incident at the U.S. Parole Commission, a little-noticed corner of the federal government, was certainly no Watergate. But it was one in a string of curious events that have unfolded quietly in recent years at the small but powerful commission.

Memos, e-mails and court records spin a yarn of internal discord that threads together the unauthorized entry, an old murder outside San Francisco, a commissioner's resignation and attempts to win funding to improve a rural highway in Missouri.  Players in the drama include a former special assistant to President George W. Bush, a past member of the Black Panthers -- even a former Justice Department official who oversaw the politically tinged dismissal of nine U.S. attorneys.

The Parole Commission's future has been in question since 1984, when Congress voted to eliminate federal parole and establish formal sentencing guidelines.  The commission still has a multimillion-dollar budget and nearly 80 employees at its headquarters in a nondescript office building in Chevy Chase.  It has survived attempts by lawmakers to eliminate it because it also handles inmates convicted under D.C. law and because some convicts sent away under the old federal system still need to have their cases heard.

Fascinating fights over how to pass the prison buck in California

This interesting and effective article from the Los Angeles Times brings to mind the famous phrase "follow the money," along with "it's the prison economy, stupid" and maybe also "the buck does not stop here." 

The LA Times article is headlined "Bid to divert California prisoners to county jails denounced: Local officials say they don't have the room or the funding to house the low-level felons that the governor wants to send them."  It highlights how different divisions of government in California are fighting over who will pay for the state's reliance on locking up so many persons to deal with crime and administer punishments.  Here are a few excerpts from this interesting piece:

Local officials have vowed to fight a proposal by Gov. Arnold Schwarzenegger to shave $1 billion from the state budget by shifting 23,000 state prisoners to overcrowded local jails during the next three years.  "This presents a serious danger to public safety," said Los Angeles County Dist. Atty. Steve Cooley. "We are putting in jeopardy gains that have resulted in crime plunging in L.A. to its lowest level in 50 years."

The state's 33 prisons house about 155,000 inmates and are under a federal court order to relieve overcrowding. If state officials do not address the problem soon, a panel of three federal judges could set a cap on new prisoners and order thousands released.  "We are having to look at all options to reduce our population and avoid a cap or an inmate release order," said Seth Unger, a spokesman for the state Department of Corrections and Rehabilitation.  "We have in many ways cut to the bone."

The governor wants to slow the stream of offenders being sent to prison by changing state sentencing guidelines so those who commit low-level felonies such as fraud or grand theft, known as "wobblers," would be prosecuted for misdemeanors and sentenced to jail instead.

Facing a possible $24-billion state budget deficit, the governor's office estimates that changing the sentencing laws could save $99.9 million in the next fiscal year, $360 million the following year and $566 million the third year, said H.D. Palmer, a spokesman for the Department of Finance. "The goal is to have flexibility in the sentencing but to keep the hardest offenders behind bars," Palmer said.

Before the proposal could take effect, state legislators would have to approve sweeping changes to the penal code, which some local officials hope is unlikely given the current gridlock in Sacramento. Lawmakers have, however, agreed to stem the flow of inmates to state prisons in recent years by prohibiting any legislation that would convert misdemeanor crimes into felonies. ...

Local officials said much of the cost saved by the state would be passed on to them. "It's another example of the state taking their problems and pushing it down to the local level even though all of us have equal economic problems," said William T Fujioka, Los Angeles County's chief executive.

The governor's plan would force counties to house the equivalent of the populations of four state prisons, including about 12,000 drug offenders. Los Angeles County has about 19,000 inmates in its seven jails and is among 20 California counties that face court orders to relieve jail overcrowding....

Los Angeles County Sheriff Lee Baca met with state Corrections Secretary Matthew Cate last week to discuss the governor's proposal, which Baca said would force him to release inmates early to make room for the influx. Los Angeles County Chief Probation Officer Robert Taylor said the plan, which he called unrealistic, would also strain the county's underfunded system for supervising probationers.

Civil rights advocates who have pushed to improve conditions at local jails said the proposal would worsen inmates' plight.  "Local jail overcrowding is already an unconstitutional epidemic in California," said Melinda Bird, senior counsel for the American Civil Liberties Union of Southern California....

Don Meyer, probation chief in Yolo County and president of the statewide council, said that for smaller counties, the governor's proposal amounts to an untenable budget cut.  Yolo County is considering closing one of its two jails, Meyer said, and won't have anywhere to put state prisoners.

The governor also proposed several other cost-cutting measures for state prisons last week after statewide ballot measures failed and the budget gap widened.  Those include transferring 19,000 illegal immigrants to federal custody and releasing 26,000 nonviolent offenders 20 months early.

What should Florida and other states do with all their old sex offenders?

The question of this post follows from reading this interesting local article, headlined "Judge decides sex offender will stay confined at age 89."  Here are excerpts:

He's the state's oldest living sexually violent predator, but who is the real Ralph Hawker?

To some, he's an infirm World War II veteran who will turn 90 in September and uses a wheelchair because of the effects of diabetes, Parkinson's disease, thyroid and heart disease.  To others, he is a pedophile who, despite his age, would continue to prey on young boys if given the opportunity.

"I don't think anybody's concerned about [Hawker] putting on his Nikes and running down the street chasing kids," Palm Beach Circuit Judge Chuck Burton said at a court hearing May 18 to decide whether the convicted pedophile should be released from a civil commitment center where he has been locked up since 2000. "But he's stubborn as hell," Burton said. "What do you do with somebody with an attitude like that?"

You leave him in Arcadia's Florida Civil Commitment Center, Burton ruled Thursday. "If he were in the company of a young teenage boy whom he deemed to be consenting to sexual activity, this Court has no doubt that Hawker would offer sexual gratification to the boy," Burton wrote in his order. "He sees nothing wrong with it as long as the child had participated in some type of sexual activity previously."

In 1988, Hawker was sentenced to 10 years of probation for molesting two pre-teen boys, one of them a relative. Just before the sentence ended, Hawker violated the terms of his probation by being in the company of an unsupervised minor. He was imprisoned.  As his 2000 release date approached, the state began proceedings to have Hawker committed under Florida's Jimmy Ryce Act. Since 1999, the Ryce Act has allowed the indefinite civil commitment of sex offenders after they have completed their prison terms.

In 2005, a Palm Beach County jury found Hawker to be a sexually violent predator — the required designation to commit someone to the center. He has been locked up there since then. He is one of 677 residents at the center, according to state Department of Children & Families.  He is the oldest resident, one of 25 men age 70 or older.

In a written statement to the Sun Sentinel, a facility spokesman said the center can accommodate its elderly residents, who are scattered among the general population.  Officials at the facility are considering developing a 20-bed unit for elderly residents with medical challenges, a criterion Hawker meets.

The problem highlighted in this article — namely deciding just what will be done with (really) dirty (really) old men — is one that lots of states other than Florida will also surely be facing in the years ahead.  With so many long sentences and civil commitment schemes in place for sex offenders, and with so many fearing that sex offenders can never be trusted not to reoffend, it seems likely that all states should be prepared to build facilities to house elderly sex offenders.

Some related posts:

• NPR story about elderly sex offender prisoners
• Are all states going to need to create old-age prisons?
• "Elderly Offender Home Detention Pilot Program"
• When tough-on-crime bills come due
• The (medical) costs of long sentences
• More on the (medical) costs of long sentences
• Aging gracefully ... in prison?
• The high costs of an aging prison population

Religious group advocating against juve LWOP

Yesterday's Los Angeles Times had this interesting article, headlined "Interfaith group seeks second chance for youths sentenced to life: The coalition delivers a message of redemption in sermons at some 200 California churches, synagogues and mosques." Here are snippets:

The major faith traditions teach that the young are special in the eyes of the Almighty. So what does God do when one of them commits a horrible crime and is consigned to a life in prison? He cries.

That was the message delivered over Memorial Day weekend at some 200 churches, synagogues and mosques around the state by an interfaith coalition trying to change people's attitudes about long sentences for juveniles -- especially those facing life without the possibility of parole. "When children commit certain actions, we stop thinking of them as children," Javier Stauring, director of Faith Communities for Families and Children, told a group of about 90 people Sunday at All Saints Episcopal Church in Pasadena. "We start fearing them, we start demonizing them."

The Bible virtually sanctifies children. That doesn't change, Stauring suggested, when the legal system tries a young teenager as an adult. While not condoning their crimes, Stauring said a society with redemption in mind would not foreclose a second chance to someone so young. "It's a lot easier to lock up a problem and throw away the key and not have to think about it, and to think that's going to make us safer," he said. What will make society safer from young criminals, Stauring said, is going after the "layers of woundedness" that often afflict them -- wounds that may stem from violence or abuse....

Stauring's group ... is advocating for state Senate Bill 399, which would permit anyone under 18 sentenced to life without parole to ask for resentencing after serving 10 years. If the inmate met certain conditions, he or she could be eligible for a new sentence of 25 years to life.  Even that seemingly small window, Stauring said, would give hope to the still-young person.

The coalition's efforts are aligned with Human Rights Watch, an international organization that has called on Congress to end life-without-parole sentencing for young offenders. "Sentencing juveniles to die in prison is cruel, costly and unnecessary," the organization's U.S. program director said this month.  The group reported that at least 2,574 inmates in the United States were sentenced to life without parole for crimes committed before the age of 18.  California has 250 of them. The United States is the only country that imposes such harsh sentences on juveniles.

This article leads me to wonder if anyone is busy working on a religious and/or biblical amicus brief in Graham and Sullivan, the two juve LWOP cases from Florida recently taken up by the Supreme Court. 

Other recent related posts on juve LWOP and on Graham and Sullivan:

• California bill seeks to eliminate juve LWOP
• Human Rights Watch calls for federal legislation to eliminate juve LWOP
• New HRW report assailing juve LWOP in California
• NYTimes coverage of very young lifers
• SCOTUS grants cert in Sullivan, juve LWOP case
• The (unpreserved?) procedural issues in Graham juve LWOP case
• What might (and should) DOJ and other potential amici say about Graham and Sullivan?
• Analyzing the cert grants in both Graham and Sullivan

Reviewing three decades of the death penalty in the Sunshine State

This local article, headlined "Fla. marks 30 years since death penalty's return," reviews some of Florida's notable capital punishment experiences over the last three decades. Here are snippets from the article, which highlights that Florida has had some of the biggest problems with execution methods:

Three decades have past since Florida resumed executions when John Spenkelink was strapped into Old Sparky and electrocuted, the nation's first involuntary execution after a Supreme Court ban was lifted.

Since then, the state has executed another 64 men and two women. Florida has changed its execution method from the electric chair to lethal injection and the conflict over the death penalty remains as heated as it was 30 years ago. There have been several botched executions and former Gov. Jeb Bush once imposed a moratorium to review the state's procedures and make sure they passed constitutional muster....

Florida has had its share of problems while performing executions. Twice there were fires in the electric chair headpieces: Pedro Medina in 1997 and Jesse Tafero in 1990. In both cases, someone on the execution crew had replaced natural sea sponges with artificial sponges, causing flames and sparking when power was turned on in the chair.

On another occasion, [former warden Richard] Dugger recalls seeing blue electricity danced across the floor during an execution. A prisoner mopping up the floor had left a pool of water under a rubber mat in the execution chamber. Dugger said it is lucky the entire staff was not electrocuted.

The switch to lethal injection did not solve the problems. In December 2006, it took Miami killer Angel Diaz about 36 minutes to die. An autopsy showed the needles used to send lethal drugs racing through his veins had poked through into his muscles.

Bush ordered an investigation into the failure, causing a yearlong delay in executions and a change in procedures. Now, midway through the execution, the warden shakes the inmate to ensure that he is unconscious after the first chemical is administered. If inmate does not respond, the final two chemicals are injected.

In Florida, serial killers Ted Bundy and Gerald Stano, and black-widow killer Judy Buenoano were among the 44 inmates strapped into the electric chair, a three-legged oaken chair built by inmates. Another 23 inmates, including female serial killer Aileen Wuornos and Gainesville student slayer Danny Rolling, have died from lethal injection.

Today, Florida has 392 death row inmates, compared to 134 in 1979. Two, John Marek and David Johnston, recently had their executions stopped by the state Supreme Court.