June 16, 2009
New York Times complains (foolishly?) about creative writing sentence
I am intrigued and a bit troubled to see that the New York Times has this new editorial that appears to be complaining about the recent sentencing decision ordering a white-collar defendant to write a book (discussed here). Here is most of the editorial:
We have not read the little monograph that James H. Lake, a Washington lobbyist at the time, wrote in the late-1990s.... In 1998, Mr. Lake pleaded guilty to making illegal campaign contributions. The judge in the case, Ricardo M. Urbina of the United States District Court for the District of Columbia, ordered Mr. Lake to set down in writing his description of the criminal code that covered his crime.
Soon there will be another title in what might be called the Urbina canon. Last week, he sentenced Dr. Andrew G. Bodnar — a former pharmaceutical executive who pleaded guilty to making a false statement to the federal government about the efforts of the company that he worked for to resolve a patent dispute — to write a book about his case as a warning to other executives.
We do see the possibility of justice in this sentence — if Dr. Bodnar hates to write. But it feels like an invitation to insincerity. In fact, it feels a little like asking an adolescent boy to explain, in front of his friends, why telling a lie is bad, bad, bad.
Many people in professional life believe they have a book in them. Whether it ever gets out is usually a matter of passion, persistence and chance, not court decree. We don’t know if there is any deterrent value in Judge Urbina’s approach (beyond deterring us from reading the product).
Given the vanity in publication, it might be better if he ordered white-collar defendants not to write books about what they did. Now that would sting.
Though this editorial is not a robust rebuke of Judge Urbina's creative sentencing approach, it is another example of the tendency of the media and others to react too negatively to forms of punishment other than imprisonment. The NY Times likely would not have even noticed had Dr. Bodnar been given a year in prison, and this editorial never confronts the important reality that most everyone would prefer that a parent order a boy to explain why lying is bad rather than lock that boy in a closet for days or weeks.
"Jail time cut for pregnant illegal alien"
The title of this post is the headline of this local article that provides an update on a notable federal sentencing case (discussed here) in which a pregnancy became a reason for a longer prison term:
A pregnant, HIV-positive African woman will give birth in a Portland hospital rather than a federal prison after a U.S. District judge on Monday ordered that she be released on personal recognizance bail while her appeal to the 1st U.S. Circuit Court of Appeals is pending in Boston.
U.S. District Judge John Woodcock last month sentenced Quinta Layin Tuleh, 28, of Cameroon to 238 days in prison — twice as long as the recommended sentence of 114 days — for having false documents....
Tuleh, whose due date is Aug. 29, agreed Monday to remain in Portland while on bail and receive treatment coordinated through the Frannie Peabody Center. The center offers support to people diagnosed with AIDS and the virus that causes the disease....
In imposing the sentence on May 14, Woodcock rejected a 114-day, or time-served, sentence recommended by her attorney and the federal prosecutor, according to a transcript of the hearing. The judge also imposed a sentence that was longer than the zero to six months recommended in the federal sentencing guidelines.
The judge said that to ensure Tuleh received proper medical care through the birth of her child and to increase its chances of being born free of the HIV virus, which causes AIDS, he was sentencing her to remain in jail until two weeks past her due date. Woodcock also said he was concerned that Tuleh would be deported to Cameroon before giving birth if she were to be released earlier.
Testimony on Monday from Putnam and an agent with U.S. Immigration and Customs Enforcement allayed those concerns, Woodcock said in granting the motion for bail. “I recognize that the sentence turned out to be controversial,” he said. “I can certainly understand how some have misinterpreted what the court intended to do in this case.”
Woodcock said that what he had wanted to do was “to step in between the prison system and the social [safety] net” to ensure that Tuleh remained healthy and that the child was born healthy. “At the time of the sentencing, I had no clear understanding of what the community could do,” Woodcock said. “I had no specifics.”
He got them Monday from Putnam, who testified that Tuleh would be put up in a Portland motel until housing in the city could be found for her. The pregnant woman already has been connected with an obstetrician, virologist and pediatrician for treatment, she said....
A three-judge panel in Boston has agreed to hear the appeal on an expedited schedule, but oral arguments are not expected to be held until late July and early August. In addition to appeals filed by the prosecution and the defense, a group of 15 individuals and organizations have filed in Bangor and Boston a “friend of the court” brief in support of Tuleh. Woodcock said Monday that he found the brief “articulate and helpful” in making his decision about whether to release Tuleh on bail.
China changing execution method from firing squads to lethal injection
The world's top execution country has announced a change in its execution protocol. This Reuters article, headlined "China to swap bullets for lethal injections," provides this report:
China's capital plans to use lethal injections in executions by the end of the year and firing squads will eventually be phased out across the country, state media on said on Tuesday, quoting law officials.
Lethal injections were "cleaner, safer and more convenient," the official China Daily quoted the director of China's Supreme People's Court, Hu Yunteng, as saying. "As lethal injection is the most popular method for execution adopted by countries with capital punishment, China will follow suit ... it is considered more humane," Hu added, although a complete nationwide shift was a long-term goal because of costs.
In the capital, however, a new facility near a prison that houses most of the capital's death row inmates has rooms for execution, observation and storage of bodies, the Beijing News reported. Special judicial police would be trained to deliver the prisoners and administer the injections, while medical staff would supervise the drugs and confirm the deaths, the report added.
Lethal injection was legalised in China in 1997, and was first used in southwestern Yunnan region the next year, the China Daily said. Beijing began using the method to execute some prisoners in 2000, but it is still rare.
China is probably the world's most prolific state executioner, with at least 7,000 people sentenced to death and 1,718 people executed last year, according to rights group Amnesty International. It has drawn criticism from rights activists for the high execution rate and the range of crimes that carry the death penalty. It now applies to more than 60 offences in China, including many non-violent and economic crimes.
In January 2007, the Supreme People's Court regained the power of final approval of death penalties, devolved to provincial high courts in the 1980s, and it promised to apply the ultimate punishment more carefully.
June 15, 2009
"Explaining the imprisonment epidemic"
The title of this post is the title of this editorial introcution to this issue of the February 2009 issue of Criminology & Public Policy. Here are the other articles on imprisonment in this issue:
Crime, cash, and limited options: Explaining the prison boom by William Spelman
Modern time-series methods and the dynamics of prison populations by Michael Murray
Explaining the rise in U.S. incarceration rates by Stephen Raphael
Money and mass incarceration: The bad, the mad, and penal reform by Marie Gottschal
Split Eleventh Circuit ruling on reasonableness of long sentence for one co-conspirator
Today the Eleventh Circuit handed down an interesting ruling on the reasonableness of a sentence in US v. Docampo, No. 08-10698 (11th Cir. June 15, 2009) (available here). Here is how the majority opinion, per Judge Pryor, gets started:
The main question presented by this appeal involves the reasonableness of the sentence of a young adult who was arrested in a sting operation that involved the armed robbery of a fictional stash house of cocaine and who later threatened a witness who testified against him. The question is whether the district court abused its discretion when it sentenced John Andrew Docampo Jr. to a term of imprisonment of 270 months, instead of the mandatory minimum term of 180 months that he requested, even though some conspirators pleaded guilty and received less severe federal sentences and other conspirators who were juveniles when arrested pleaded guilty as adults in state court and received terms of probation.... Because the other conspirators either pleaded guilty and agreed to cooperate or were not prosecuted in federal court, we conclude that they are not similarly situated to Docampo and any disparity in sentences is warranted. See 18 U.S.C. § 3553(a)(6). Docampo’s sentence is reasonable.
Here is how the dissenting opinion, per Judge Barkett, gets started:
I concur in the majority opinion but for its determination that John Docampo’s sentence of 22.5 years is reasonable. I believe a sentencing court’s passing mention that it has considered the 28 U.S.C. § 3553(a) factors without more analysis, as in this case, provides an insufficient basis for appellate review and consequently is procedurally unreasonable. I further believe, under the facts presented, that Docampo’s sentence is substantively unreasonable, a conclusion only bolstered by the far lower sentences imposed on all of his significantly more culpable co-conspirators.
SCOTUS addresses meaning of "aggravated felony" in immigration decision
As detailed at SCOTUSblog here and here, this morning the Supreme Court granted cert on four new cases and handed down two opinions. All the cert grants were in civil cases, and technically so were the two issued opinion. But the opinion, per Justice Breyer for a unanimous Court, in Nijhawan v. Holder, No. 08-495 (avaialble here) has lots of criminal law talk as the Justices work through what constitutes an "aggravated felony" to authorize deportation under 8 USC §1227(a)(2)(A)(iii).
I may have more to say about Nijhawan, particularly as it pertains to all the complicated issues surrounding "crime of violence" sentencing enhancements, when I get a chance to work through its statutory analysis. Commentors are welcomed and encouraged to get a running start on Nijhawan nattering.
Judge Samuel Kent finally heading to prison today
Thanks to this post at How Appealing, evenyone can catch up on all the latest news about Judge (and convicted felon) Samuel Kent, who is due to report to prison today. This recent article by Mary Flood in the Houston Chronicle provides a glimpse into Kent's immediate future:
Disgraced federal judge Samuel Kent is scheduled to report Monday to a Massachusetts prison that specializes in care for felons with medical or mental health problems. He’ll join a mobster who recently appeared in court by video from a prison wheelchair, a number of child pornographers, embezzlers and drug abusers, among the 1,300 or so others.
Kent is scheduled to turn himself in to the Devens Federal Medical Center in Ayer, Mass., about 40 miles west of Boston. He’s due by 2 p.m. Monday, a week shy of his 60th birthday. The judge, who is also facing a fast-tracked impeachment by the U.S. Congress, pleaded guilty to obstructing justice by lying to a judicial panel about his repeated sexual molestation of two former female employees. Kent admitted his assaults and was sentenced to 33 months in federal prison.
Devens features a camp, which offers some sense of freedom, and a hospital built in the former military hospital in the decommissioned Fort Devens. The spot is likely most famous for being ground zero during the influenza pandemic of 1918. “As a practical matter Devens has low security people,” said Alan Ellis, a San Francisco-based lawyer who wrote the Federal Prison Guidebook. “If he needed a hospital and he were a greater risk, he’d be in Springfield, where John Gotti was at the end of his sentence.”
Devens prisoners who have made headlines in the last few years include pornographers, money-launderers, thieves and quite a few minor public officials or civic leaders sentenced for a variety of white-collar offenses.
Related posts on the Kent proceedings:
- Judge Kent takes a deal (and now becomes the latest, greatest topic for sentencing debate)
- "Is Kent getting off easy?"
- More questions and fall-out following Judge Kent's guilty plea
- Latest notable news surrounding former judge (now felon) Sam Kent
- Any predictions on former Judge Sam Kent's sentence? UPDATE: 33 months
- Latest news on impeachment process for former Judge Kent
- Interesting materials from the hearing surrounding impeachment of Judge Kent
- Judge Kent's letter discussing judicial activism, isolation and substance abuse
Lots of headlines about lots of death row delays
This morning brings a number of notable article discussing the long wait of death row for condemned defendants in various states:
From the Chicago Tribune here, "Indiana executions at slowest pace in 15 years"
From the Deseret News (Utah) here, "Lengthy death-row appeals targeted"
From the San Francisco Chronicle here, "Legal stalling is packing Death Row"
June 14, 2009
A fascinating view of a different approach to prison architecture
This morning's New York Times includes this must-read article from the magazine section. The piece is headlined "Behind Bars ... Sort Of," and it is focused on prison near the Austrian town of Leoben that is "a sleek structure made of glass, wood and concrete, stately but agile, sure in its rhythms and proportions: each part bears an obvious relationship to the whole. In the daytime, the corridors and rooms are flooded with sunshine. At night, the whole structure glows from within." As the pictures in this slideshow highlight, the facility looks more like an Ikea store than a prison. The article does a great job discussing not only the architecture of places in which people are imprisoned, but also the relationship between prison construction and crime rates and a bunch of other important punishment topics.
There are too many great passages in this article to quote them all, but he is a sample of just some of the interesting insights in this terrifically thought-provoking piece:
It sounds odd to say, but it’s nonetheless true: we punish people with architecture. The building is the method. We put criminals in a locked room, inside a locked structure, and we leave them there for a specified period of time.
It wasn’t always so. Prison is an invention, and a fairly recent one at that: it wasn’t until the 18th century that incarceration became our primary form of punishment. True, there have been dungeons and the like for quite some time, but they were generally for traitors and political enemies and, later, debtors. More common criminals could expect other forms of penalty: execution, for example, and various kinds of corporal punishment; forced labor and conscription; public humiliation; the levying of fines; exile; loss of privileges and offices; and so on. We’ve come to consider most of these barbaric, unjust or wildly impractical, but their very existence should tend against the idea that settling with criminals by putting them in a building is a natural thing to do.
To be sure, there’s something about prisons that engages man’s imagination. Alberti discussed them, Piranesi drew them, Jeremy Bentham proposed them. But the imagination of incarceration rarely translates directly into design. Bentham’s Panopticon, a circular structure with an all-seeing guardhouse in the middle, was meant to show that surveillance was as powerful a method of control as shackles and door locks — an idea that has proved enticing to many an academic, though it was never built....
Does imprisonment work? It seems like a bottom-line question, but the answer depends on what you want prisons to do, and that’s not an easy thing to decide. Even if we assume that there are good and sensible reasons to incarcerate people, there remains some debate about what purpose is served. Deterrence is often proposed as a goal, but no one really knows whether the prospect of incarceration gives would-be criminals pause, and in any case we quickly reach the realm of diminishing returns....
In fact, though most of us are reluctant to admit it, we mainly use prisons as storage containers, putting people there with the hope that, if nothing else, five years behind bars means five years during which they can’t commit more crimes. It’s called warehousing, and we do a lot of it....
[P]rominent architects aren’t lining up to take on the task of making prisons better. Most ]architects] would be happy to design a courthouse, but few are quite as eager to build a penitentiary, though the two are merely opposite ends of a single system. New prison construction is generally parceled out to a handful of large and more-or-less anonymous firms — a process that discourages innovation. Whoever gets the commission is told how many beds are needed, what kinds of security, how much room for the clinic, the recreation area, the guardhouses. They’re big-box prisons, as anonymous and uninflected as so many Wal-Marts.
Do prisoners get better health care than poor?
The question in the title of this post is inspired by this notable op-ed piece from a local Oregon paper, which is headlined "State is wasting money on death-row health care." Here are excerpts:
On Sept. 18, 1995, Horacio Alberto Reyes-Camarena repeatedly stabbed two sisters, 18 and 30, whom he had met at a farm labor camp. The younger bled to death but the elder survived with 17 stab wounds to testify against him. In 1996, Reyes-Camarena was sentenced to Oregon's death row. He was placed under protection of the state.
When it was discovered that his kidney was failing, the state covered the costs for his treatment, using $121,000 taxpayers' dollars per year to pay for dialysis. On top of that, his prison doctor stated that he deserved a kidney transplant, a procedure that would cost the state an additional $100,000, so that he would be able to stay healthy until the date of his execution.
One would hope that this was a rare case, but unfortunately, Horacio is one of many death row inmates who receive premier treatment, cutting in front of thousands of others who are waiting for the same procedures. I think it is a little ironic that this murderer receive the transplant while 17 innocent people die every day in the U.S. waiting for this surgery, and the state of Oregon is paying for it. As an Oregonian who has watched my elementary school and 2 others close while our high school was forced to cut days, classes, and teachers due to lack of state funding, I find it not only irresponsible but negligible for the state to be paying for such outrageous procedures to keep alive a man who has been sentenced sentenced to die.
Oregon is not alone in this excessive spending, however. Last year, California's overseer of the state's prison health care system petitioned for $8 billion over the next five years to build seven advanced medical facilities for inmates throughout the state. These facilities will provide premium health care for the inmates, many of whom have had horrible health problems due to drug use, lack of hygiene or gang violence previous to their admittance to the penitentiary.
Is it right for the government to be spending billions of dollars providing better health care for those that have broken the rules then for the thousands of innocents who can't afford insurance? No!...
The government should take this wasted spending and allocate it to the areas that could lower the number of inmates convicted in the first place: the public school system. It is proven that higher education directly relates to lower crime rates and incarceration. With Oregon's education system ranked last among the 50 states in many areas, and being one of only five states to receive a "D" overall grade according to last year's report by Education Week's Quality Counts, it is an understatement to say that much needs to be done.
It is not acceptable that criminals who have committed crimes worthy of the death penalty receive transplants, complex surgeries and advanced treatments ahead of others and at the cost of the state while our schools are ranked as some of the lowest in the nation. Why should Reyes-Camarena and others like him receive $121,000-per-year treatments while the Oregon House and Senate are forced to cut $116 million for the coming school year?
Take this money that ensures the premium health of soon-to-be-executed inmates and reallocate it to programs that boost overall education, driving down the crime rate and in turn reducing the number of crimes punishable by death. The solution is simple. What is holding us back?
Lots worth reading around the blogosphere
Here is just a sampling of some criminal law posts of note around the blogosphere:
From The Crime Report here, "The Public Health Implications of Prisoner Reentry in California"
From Grits for Breakfast here, "Might threat of punishment reduce drug dealing more than punishment itself?"
From How Appealing here, "Ed Carnes, an 11th Circuit judge, issued a strong dissent in a rare vote to overturn a death sentence."
From SCOTUSblog here, "Guns, dicta and 'sensitive places'"