June 27, 2009
Feds seeking the max for Bernie Madoff
As detailed in pieces in the New York Times and in the New York Law Journal, federal prosecutors "recommended on Friday that Bernard L. Madoff be sentenced to 150 years in prison for conducting his enormous worldwide Ponzi scheme."
Here is more from the NYTimes piece: That term is the maximum established for his crime under nonbinding federal sentencing guidelines. Although it would be a purely symbolic sentence even for a young prisoner — and Mr. Madoff is 71 — prosecutors said it was warranted by the “extraordinary dimensions” of his crimes.
“He engaged in wholesale fraud for more than a generation,” said Marc Litt, an assistant United States attorney, in a memo sent to Federal District Judge Denny Chin, who will sentence Mr. Madoff on Monday. Although Mr. Madoff testified in March that his Ponzi scheme began about 1991, Mr. Litt said in his brief that a confidential presentencing report shows it began at least a decade earlier.
“The sheer scale of the Madoff fraud calls for severe punishment,” Mr. Litt continued. Comparing his crime with others that have come before the federal courts in New York “only underscores the enormity of Madoff’s offenses,” he added.
Anyone interesting in reviewing the entire Government sentencing memorandum can find it at this link.
Sentencing the focus of inaugural Chapman Journal of Criminal Justice
Thanks to a helpful e-mail, I discovered the new Chapman Journal of Criminal Justice, and also discovered the the new journal's inaugural issue has a series of notable sentencing articles by a bunch of notable authors following up the journal's symposium on evidence-based sentencing last summer. The full issue is available as a (very long) pdf at this link.
An interesting review of a little habeas history
I just came across this intriguing little paper via Bepress, titled "The Story of Tarble's Case: State Habeas and Federal Detention." Here is the abstract:
This essay addresses the background to and significance of Tarble’s Case (1872), in which the Supreme Court concluded that state courts lack the power to issue habeas corpus to challenge the lawfulness of detention by federal officials.
It is fun (though perhaps frustrating) to imagine what federal crime and punishment like look like if state courts could consider habeas challenges by federal defendants. I suspect that more than a few state judges might have been more open to various constitutional attacks on federal sentencing rules (like acquitted conduct enhancements) than most lower federal courts have been.
"Census Prisoner Count Dilutes Urban Political Clout"
The title of this post is the headline of this article from The Legal Intelligencer. Here is how the article starts:
The voting power of Philadelphians is diluted on the state level because state and federal prisoners are counted by the U.S. Census Bureau where they are incarcerated, instead of the prisoners' home communities in which they lived before they were incarcerated, an advocacy group has concluded.
Eight state House of Representatives districts would not meet federal "one-person, one-vote" standards if nonvoting state prisoners did not count as district residents for purposes of drawing up legislative districts, according to an analysis conducted by Prison Policy Initiative, an advocacy group based in Northampton, Mass.
PPI is pushing for the U.S. Census to change where it counts prisoners. The group has analyzed the effect of counting prisoners on state legislative districting from New York to Nevada. The PPI planned to release its first Pennsylvania-based report, "Importing Constituents: Prisoners and Political Clout in Pennsylvania," today.
Because of the nation's burgeoning prison population, counting prisoners where they are incarcerated is having a greater impact on the equitable division of legislative districts than ever before, the report said. Because prisoners can't vote, residents who have a right to vote in districts that have a state or federal prison within their borders benefit from greater legislative clout than voting residents in districts without a state prison, the report argued.
The referenced report from the Prison Policy Initiative can be accessed at this link.
June 26, 2009
Any sentencing predictions or prognostications before Monday's Madoff mania?
Infamous ponzi schemer Bernie Madoff is scheduled to be sentenced this coming Monday, and so a slow summer friday presents a great opportunity for sentencing predictions and prognostications before the Madoff mania. Helpfully, this Bloomberg piece, headlined "Madoff’s Failure to Name Accomplices Cripples His Leniency Bid," gets the ball rolling effectively. Here is how the lengthy piece begins:
Bernard Madoff’s bid for a 12-year sentence will probably be stymied by his failure to tell U.S. government investigators about those who may have helped him defraud investors of as much as $65 billion. Madoff faces as many as 150 years in jail when he comes before U.S. District Judge Denny Chin in Manhattan on June 29 for sentencing. Probation officials have recommended Madoff spend the rest of his life in prison. Instead, Madoff asked Chin last week for a sentence that’s half that meted out to the convicted chief executives of Enron Corp. and WorldCom Inc.
Since his Dec. 11 arrest, Madoff, 71, has insisted he acted alone in the largest-ever Ponzi scheme. He took sole responsibility for the fraud when U.S. agents arrested him in December and in his March 12 guilty plea. In a letter this week to Chin, Madoff’s attorney, Ira Sorkin, argued his client has told investigators about his assets and how he duped regulators. Sorkin said nothing about Madoff’s accomplices.
White-collar defense lawyers such as George Jackson, a former federal prosecutor now at Bryan Cave LLP in Chicago, said the judge will be deterred by Madoff’s silence on this issue as he weighs the ex-money manager’s request. “If he did cooperate, he would open himself up to the possibility of a sentence that would give him a ray of hope of having freedom at some point,” said Jackson, who isn’t involved in the case. If silent, said, Jackson, “The judge could say, ‘I have not heard who you operated with, and it’s clear to me that you operated with someone.’”
I share the instincts of this commentator, and that's why I have set in my own mind 25 years in prison as the over-under for Monday's festivities. I think Judge Chin will prefer to impose a number of years rather than a life term, but the scope of the fraud and Madoff's extreme culpability leads me to assume that the number of years selected will be quite large.
Some related Madoff sentencing posts:
- Madoff asking for a 12-year prison sentence
- Why Bernie Madoff won't get a record white-collar sentence
- "Will Madoff ever leave prison alive?"
- Running the federal sentencing guideline numbers for Bernie Madoff
- "Death penalty for white-collar criminals?"
- "Madoff's $lick Try"
- "Madoff Mercy: How long should the Ponzi schemer go to prison for?"
- White-collar fraud meets technocorrections for Bernie Madoff
- Notable criminal justice echoes of the Madoff mess
- FSR issue focused on white-collar sentencing
UPDATE: A review of the Government's sentencing memorandum and also the thoughtful comments below have led me to revise my over-under for Madoff's sentencing term. I am now thinking that 40 or 50 years might be a more appropriate over-under. (I am also now wondering if there is any actually betting on this event going on in the UK.)
Some great SCOTUS crim law commentary around the blogosphere
I have seen lots and lots of good posts from the usual good crim law bloggers in response to some of the recent SCOTUS crim law action. Here are just a few of the many posts worth checking out:
From Grits here, "Real splits on criminal justice not liberal-conservative"
From Prawfs here, "Thoughts on Yeager: Role of Appellate Judges, Special Verdicts, and the Meaning of a Hung Jury"
From SCOTUSblog here, "Law need not bow to chemistry"
From Volokh here, "Crime Severity and Constitutional Line-Drawing"
"A chaplain's take on capital punishment"
The title of this post is the headline of this new commentary appearing in the Austin American-Statesman. Here are snippets:
The last time I checked, seven out of 10 Texans approved of the death penalty, and not surprisingly, Texas executes more people than any other state (and for that matter, most foreign countries). Hence, it should surprise no one that our current governor has sat by while 200 fellow human beings have been executed over in Huntsville. If he commuted death sentences, he'd never be re-elected.
But I wonder about those pro-death penalty Texans. Don't they know that Jesus was a victim of the same state-sanctioned murder to which we've become so tragically inured here in the Lone Star State? The Jewish Sanhedrin did not kill Jesus. Rome did! And from the very beginning of his brief three-year ministry, Jesus opposed any and all expressions of violence.
By far, the most authoritative book I've read on the subject of the death penalty was "Within These Walls: Memoirs of a Death House Chaplain," written by a fellow Presbyterian minister, Carroll Pickett. The Rev. Pickett begrudgingly began assisting with executions back in the '70s when capital punishment was once more ruled legal. Today Carroll Pickett travels coast to coast, advocating passionately and effectively against the death penalty, but more importantly he witnesses to the life and to the radical love of Jesus.
I think Pickett's book is a must-read for every human being who, like me, believes that all human life is sacred. Pickett has come to understand that Caesar's kind of justice all too often looks and smells a whole lot like vengeance, while for God justice is quite simply always the same thing — an incomprehensible love made public.
Some related posts on religion, politics and the death penalty:
- Senator Brownback questions death penalty and culture of life
- Debating religion and the death penalty
- New DPIC page on religion and the death penalty
- New resource examining religion and the death penalty
- Remarkable circuit judge speech on capital punishment at mass
- Sister Prejean's powerful perspective
June 25, 2009
Judge Kent (finally!) resigns as he is served impeachment papers in prison
Thanks to this post from How Appealing linking all the press coverage, I see that convicted felon Judge Samuel Kent made some news from his prison cell this afternoon. Here is a report from the Houston Chronicle:
U.S. District Judge Samuel Kent resigned via an unusual no-frills letter that he hand-delivered in prison to two Senate officials who had come to serve a summons on him as part of ongoing impeachment proceedings in the Congress of the United States.
The resignation of Kent, a convicted felon who had continued to collect his $174,000 a year salary in prison, was announced to the surprised participants at the first meeting of the Senate’s impeachment trial committee on Thursday afternoon in Washington D.C. The committee is chaired by Senator Claire McMcCaskill, D-Missouri, who announced Kent had handed in a resignation, effective June 30th, 2009, on plain paper to the Senate’s sergeant-at-arms during an official prison visit.
Kent had earlier offered to resign in mid 2010 -- a move that angered officials in the House of Representatives who quickly voted to impeach him rather than let him collect his salary for the first year of his 33-month sentence. He could only be removed from office after a trial in the U.S. Senate. Kent pled guilty earlier this year to obstruction of justice and admitted to sexually molesting two women who worked for him when he served as the lone federal judge in Galveston....
Congressman Jim Sensenbrenner, R-Wisconsin, who served as one of the House managers for Kent’s impeachment, told the Chronicle Thursday that he was “pleased to learn that Judge Kent has resubmitted his resignation, this time effective on June 30, 2009.”
“Kent’s realization that we would not allow him to take advantage of the system proves that the system works and justice has been served,” he said. “ I hope this process reminds other judges that they are not above the laws they took an oath to uphold. I hope the women Mr. Kent assaulted will find some closure in this man being behind bars and no longer being able to serve on the bench or collect a taxpayer-funded paycheck.”
Senate Majority Leader Harry Reid and Senate Republican Leader Mitch McConnell said that the original letter of resignation would be delivered to the President and a certified copy to the House of Representatives. In separate statement, House impeachment managers and Senate leaders said that after Kent’s is accepted by the President, first the House of Representatives and then the Senate would determine what -- if any -- further action is necessary.
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
- Judge Samuel Kent finally heading to prison today
Why Bernie Madoff won't get a record white-collar sentence
In this posta few weeks ago, I put forward a "bleg from a Forbes reporter seeking to "compile a list of longest federal sentences for white-collar criminals, specifically financial criminals." The product of the reporter's efforts now appears in this effective piece, headlined "It Could Have Been Worse For Madoff : Bernie Madoff may have committed the biggest white-collar crime, but he won't get the longest white-collar sentence." Here is how the piece starts:
Bernard Madoff may have confessed to the largest investment fraud in history, but that doesn't mean he'll get the longest white-collar sentence when he faces a federal judge on June 29.
Madoff, 71, confessed to running a $65 billion ponzi scheme that spanned decades and affected thousands of investors. He faces a statutory maximum of 150 years for the 11 counts to which he pleaded guilty in March. If Judge Denny Chin decides to hand down all that time, it would still be only the fourth-longest sentence handed down in recent years to a white-collar defendant, according to an analysis by Forbes.
In any case, Madoff will almost certainly die in prison. So will Sholman Weiss, currently serving the longest federal sentence for a white-collar crime. In 2000 a Florida judge sent him away for 845 years for the $450 million collapse of National Heritage Life Insurance. Weiss was convicted and sentenced after he fled the U.S. for Austria. Later apprehended and returned, he's currently housed in a federal prison outside Scranton, Pa. The Bureau of Prisons lists his release date as Nov. 23, 2754.
"Proposed cuts would allow a Madoff to avoid prison in California, Cooley says"
The title of this post is the heading from this notable posting in the Los Angeles Times blog discussing some of the reaction to some of the cuts proposed in California's new budget. Here are a few more details:
Los Angeles County’s top prosecutor has warned that a budget proposal by Gov. Arnold Schwarzenegger would so weaken court sentencing guidelines that if a swindler such as Bernard Madoff were to be brought to justice in California he would not face state prison time.
In a letter obtained by The Times, District Attorney Steve Cooley has asked Schwarzenegger to abandon his proposal to change state sentencing guidelines so certain felonies such as fraud or grand theft, known in justice circles as "wobblers," would be prosecuted as misdemeanors.
Facing a $24-billion budget shortfall, Schwarzenegger has proposed the change in sentencing guidelines to save $1 billion over three years by shifting 23,000 criminals from state prisons to local jails and re-entry programs.
"If Bernie Madoff had committed his crime in California under the proposed statute, his … scam which has destroyed countless lives and fortunes, would have been a misdemeanor," Cooley wrote to the governor. "Such scams are commonplace in California."
SCOTUS hands down last two criminal justice cases of the Term
Though not dealing directly with sentencing issues, the Supreme Court issued its final two notable criminal justice decisions this morning. Here is the basics thanks to this post at How Appealing:
Today's third opinion issued in Safford United School Dist. #1 v. Redding, No. 08-479. Justice Souter delivered the opinion of the Court, in which the Chief Justice and Justices Scalia, Kennedy, Breyer, and Alito joined in full, and in which Justices Stevens and Ginsburg joined in large part. Justice Stevens filed an opinion concurring in part and dissenting in part, in which Justice Ginsburg joined. Justice Ginsburg also filed an opinion concurring in part and dissenting in part. And Justice Thomas filed an opinion concurring in the judgment in part and dissenting in part. You can access the opinion at this link and the oral argument transcript at this link.
The fourth and final decision issued today came in Melendez-Diaz v. Massachusetts, No. 07-591. The unusual line-up of Justices in this 5-4 ruling is as follows. Justice Scalia delivered the opinion of the Court, in which Justices Stevens, Souter, Thomas, and Ginsburg joined. Justice Thomas also issued a concurring opinion. And Justice Kennedy issued a dissenting opinion, in which the Chief Justice and Justices Breyer and Alito joined. You can access the opinion at this link and the oral argument transcript at this link.
I will be out of the office most of today, but I hope to be able to comment on both these rulings before the sun sets.
Will Judge Sotomayor say anything "activist" about the Second and Eighth Amendments?
These two new articles about Judge Sotomayor this morning highlight that her jurisprudential views on gun rights and capital punishment are sure to be a significant part of her confirmation hearings next month:
- The New York Times has this article headlined "In '98, Hints From Sotomayor on Death Penalty."
- The Los Angeles Times has this article headlined "GOP to press Sotomayor on gun rights."
The joy of considering these two stories together is that they help highlight how justified and unjustified judicial "activism" is in the (always biased?) eye of the beholder. In the arena of the Second Amendment, folks on the right are generally excited about judges and justices will strike down government efforts to restrict gun possession. In the arena of the Eighth Amendment, folks on the left are generally excited about judges and justices will strike down government efforts to expand the death penalty.
Especially if Second Amendment questions come first, Judge Sotomayor may be able to speak broadly about protecting the individual rights of gun owners in a way that will be music to the ears of those in the GOP. And, if set up effectively, she could there after talk about also protecting the individual rights of criminal defendants in a way that will be music to the ears of those on the other side of the aisle.
Senator Webb's bill for criminal justice reform commission getting some House attention
As detailed in this Huffington Post piece, the "House of Representatives will be taking up a companion version of a popular Senate bill intended to overhaul the American criminal justice system, Rep. Bill Delahunt (D-Mass.) told the Huffington Post on Wednesday." Here's more:
Delahunt, the senior Democrat on the House Judiciary Committee, said that reform of the American justice system should begin with a broad look at drug policy. "I think it's really time to do an absolute overview of the issue of drugs and come at it with an open mind," he said.
The bill, he said, "would create a commission of respected individuals in the field with a time frame for review. This deals with gang violence and everything else, but clearly, as you continue to peel back the problems, dealing with crime in this country, and particularly violent crime, the one common nexus is drugs. So you've gotta take a hard look at that."
Delahunt is a former prosecutor from Massachusetts. Asked how his experience as a prosecutor shapes his thinking on drug legalization, he turned the question around. "I mean, how long have we been waging the war on drugs?" he said. Forty years? "Is it working?" he asked.
Webb's bill was heard on June 11th in Sen. Arlen Specter's (D-Penn.) Crime and Drugs Subcommittee and is moving quickly. It now boasts 30 cosponsors, including Specter and the Judiciary Committee chairman, Sen. Pat Leahy (D-Vt.), also a former prosecutor.
Jeralyn at TalkLeft has some spot-on commentary on this news in this post.
Some related (old and new) posts:
- Senator Jim Webb continues his important campaign for serious sentencing and prison reforms
- Why is Senator Jim Webb the only national figure focused on the prison economy?
- (Too) little coverage of JEC hearing on US drug policy
Local Michigan prosecutor suing state for parole release data
It is not unusual for inmate to sue a state parole board in order to seek early release, but this story from The Detroit News is the first time I have heard of a prosecutor suing the state to find out who is being released. Here are a few of the details:
The Oakland County Prosecutor's Office is suing the Michigan Department of Corrections (MDOC) for a list of state felons scheduled for potential early release this October. The 27-page lawsuit, filed Wednesday in Oakland Circuit Court, said the prosecutor's office has been rebuffed several times -- both informally and pursuant to the Michigan Freedom of Information Act -- by the MDOC when it asked for a list of inmates to be interviewed in 2009 by the Parole and Commutation Board for potential early release.
In an MDOC program described as "Rightsizing Prisons," between 3,000 and 5,000 prisoners would be released by October as part of a cost-savings measure. Oakland County Prosecutor Jessica Cooper described the plan as "cost shifting" in a press release.
"While many individuals may be safely released after serving their minimum sentence, some are too dangerous to be released early," said Cooper. "When an inmate is released who has a high probability of re-offending, MDOC may be saving money out of its budget. However, the community in which the inmate has been released that bears the true costs. There are incalculable costs to a victim, the costs of a police investigation, the costs of another prosecution, the costs associated with the use of the court to obtain a new conviction."
Cooper and prosecutors Kym Worthy of Wayne County and Eric Smith of Macomb County have met with MDOC officials about concerns and their respective need to see a list of those who might be released.... Cooper said, "It is unfortunate that this office must resort to formal litigation to obtain this information but my duty is to protect the public."
Interesting new paper examining prosecutorial biases
I just noticed this interesting-looking new paper on SSRN by Barbara O'Brien, which is titled "A Recipe for Bias: An Empirical Look at the Interplay between Institutional Incentives and Bounded Rationality in Prosecutorial Decision Making." Here is the abstract:
Prosecutors wield tremendous power, which is kept in check by a set of unique ethical obligations. In explaining why prosecutors sometimes fail to honor these multiple and arguably divergent obligations, scholars tend to fall into two schools of thought. The first school focuses upon institutional incentives that promote abuses of power. These scholars implicitly treat the prosecutor as a rational actor who decides whether to comply with a rule based on an assessment of the expected costs and benefits of doing so. The second school focuses upon bounded human rationality, drawing on the teachings of cognitive science to argue that prosecutors transgress not because of sinister motives, but because they labor under the same cognitive limitations that all humans do.
In this article, I begin to unify these two schools of thought into a comprehensive approach. I apply the lessons of cognitive science to identify the ways in which prosecutors’ distinctive institutional environment may undermine not just their willingness to play fair, but their ability to do so. Research on the psychological effects of accountability demonstrates that when people are judged primarily for their ability to persuade others of their position, they are susceptible to defensive bolstering at the expense of objectivity. I argue that prosecutors operate under precisely such a system, and are therefore particularly susceptible to biases that undermine their ability to honor obligations that require some objectivity on their part. In support of this claim, I present the results of two original experiments demonstrating that holding people accountable for their ability to persuade others of a suspect’s guilt exacerbates common cognitive biases relevant to prosecutorial decision making, and discuss the implications of this research for reform.
June 24, 2009
Speech by AG Holder for "Rethinking Federal Sentencing Policy"
As I noted in this post, a big event this afternoon in DC took place under the heading "“Rethinking Federal Sentencing Policy: 25th Anniversary of the Sentencing Reform Act." Attorney General Eric Holder spoke at the event, and his speech can now be accessed at this link. Here are just a few of the many highlights:
The federal sentencing system, which includes both sentencing guidelines and mandatory minimum sentencing statutes, has undergone significant change since the Supreme Court’s decision in United States v. Booker. The guidelines continue to provide a sentencing baseline in all federal criminal cases. However, Sentencing Commission data show that the percentage of defendants sentenced within the guidelines has decreased since the decision. Although the full impact of recent trends in sentencing jurisprudence is still unclear, these developments should be monitored carefully. For example, we should assess whether current sentencing practices show an increase in unwarranted sentencing disparities based upon regional differences or even differences in judicial philosophy among judges working in the same courthouse. But we must also be prepared to accept the fact that not every disparity is an unwelcome one. The desire to have an almost mechanical system of sentencing has led us away from individualized, fact-based determinations that I believe, within reason, should be our goal.
We must also be aware of the fact that the federal inmate population continues to increase. This development puts an enormous strain on correctional resources. The number of inmates in federal prisons, state prisons, or local jails has quadrupled since 1980, reaching more than 2.2 million today. Of particular concern, the burgeoning prison population limits the ability of corrections officials to provide drug treatment and other services necessary to minimize recidivism. A 2002 study from the Bureau of Justice Statistics tracked a sample of more than a quarter-million prisoners released in 15 states in 1994. Within three years, two-thirds of these offenders were rearrested at least once for a new offense, nearly half were convicted for a new crime, and another quarter were re-sentenced to prison for a new conviction.
The current federal sentencing system continues to be a target for criticism from judges, academics, and attorneys across our nation. These criticisms range from concerns about mandatory minimums to the use of acquitted conduct in sentencing decisions. Accordingly, a thorough review of federal sentencing and corrections policies, with an eye toward possible reform, is welcome and necessary.
UPDATE: This new AP report on the event stresses the AG's remarks about crack-powder sentencing disparities and also notes that Justice Breyer talked about getting rid of mandatory minimums:
Attorney General Eric Holder sought support Wednesday for erasing the gap in prison sentences for crack and powder cocaine crimes, a disparity that hits black defendants the hardest.... "One thing is very clear: We must review our federal cocaine sentencing policy," Holder said at a legal discussion sponsored by the Congressional Black Caucus....
In remarks at the Congressional Black Caucus event, Supreme Court Justice Stephen Breyer, who helped craft the sentencing guidelines that now are the subject of so much criticism and debate, urged Congress to focus first on the laws creating mandatory minimums for certain crimes.
"My goodness, those mandatory minimums drive (sentencing) guidelines in 100 different ways," Breyer said. The justice acknowledged that curtailing mandatory minimums is not politically popular, or easy. "It's very, very hard to explain to people," he said.
What is a fitting and just sentence for breastfeeding while intoxicated?
This local story from North Dakota, which has now been picked up by the AP and UPI, seems certain to be fodder for punditry of all sorts. Of course, I am eager to make it a sentencing story, and here are the details from the local coverage:
A Grand Forks mother who police say was “extremely intoxicated” while breast-feeding her 6-week-old pleaded guilty to child neglect Tuesday. Officers responded to an unrelated call at a Grand Forks residence in the early morning of Feb. 13 and saw 26-year-old Stacey Anvarinia slurring her speech and breastfeeding, prosecutor Meredith Larson told the judge.
Citing a police report, Larson said officers were concerned about the infant’s welfare, so they called Altru Hospital and were told that breast-feeding while intoxicated was not good for the child. “Ms. Anvarinia was notified of that, and she continued to make attempts to breast-feed,” Larson said.
Anvarinia, who no longer is in custody, is slated to be sentenced on the Class C felony charge Aug. 7.
I am eager to hear suggestions from readers about what kinds of sentence would be fitting and just for this state felony of child neglect based on BWI (breastfeeding while intoxicated).
A local sentencing story for the dogs
During various sports radio discussions, I heard various folks assert that the different prison terms given to Michael Vick and Donte Stallworth showed that society cared more about criminals who kill dogs rather than those who killed humans. Though this claim is a bit overstated given the different mens rea culpability for Vick and Stallworth and other factors, I was interested to see today another sentencing story about dog killer. Here are some details from this local piece, which is headlined "Firefighter killed dogs before going on vacation":
Columbus firefighter David P. Santuomo will spend 90 days in jail and pay $4,500 in restitution for shooting his two dogs in the basement of his home and wrapping their bodies in a plastic sheet.
Investigators say Santuomo, 43, of 2945 Rushbury Dr., has admitted that he was going on a cruise with his girlfriend and didn't want to pay to board the dogs Sloopy and Skeeter even though two neighbors offered to watch the animals in his absence. At the time, he lived on Essington Drive near Dublin.
Franklin County Municipal Judge Harland H. Hale accepted guilty pleas to two counts of animal cruelty and one count of possessing a criminal tool a homemade silencer Santuomo used on the end of a rifle....
Assistant County Prosecutor Heather Robinson said the facts of the case are brutal: On Dec. 3, Santuomo laid down a plastic sheet in his basement and tied the dogs to a pipe, partially suspending their bodies. He shot them multiple times, then dumped their carcasses in a trash bin behind Fire Station 27 at 7560 Smoky Row Rd., where he was assigned. "He later bragged about killing his pets to fellow firefighters, and he showed no remorse, even joking about it," Robinson said. "Fellow firefighters were disgusted by what he did, and the Capital Area Humane Society was called to investigate."
Hale sentenced Santuomo to 90 days in jail and ordered him to pay a $150 fine. He must have no pets or firearms in his home for five years and serve 200 hours of community service; undergo random home inspections; and pay $4,500 in restitution for the costs of the investigation to the county and the Capital Area Humane Society, from which he had adopted the dogs.
He also was ordered to write a letter of apology to a firefighters magazine and to readers of The Dispatch. Hale said Santuomo will be permitted to serve his jail time in 10-day stints over a two-year period.
Long split Sixth Circuit opinion discussing lots of modern federal sentencing issues
The Sixth Circuit issued a long split opinion this morning in US v. O’Georgia, No. 05-2598 (6th Cir. June 24, 2009) (available here). The start of the majority's ruling provides some flavor of the many issues covered:
Mark Arhebamen, also known as McMaine Allen O’Georgia, pled guilty in 2001 to one count of aiding and assisting in the preparation of a false federal income tax return. He received a sentence of 21 months of imprisonment plus one year of supervised release. This court affirmed his conviction and sentence, but the Supreme Court remanded the case in 2005 for resentencing in light of United States v. Booker, 543 U.S. 220 (2005). The district court reimposed the same sentence.
While the appeal of his conviction and sentence was pending, Arhebamen was prosecuted separately for conduct that occurred during the false-tax-return proceedings. The new charges were for failure to appear at sentencing, making false claims of United States citizenship, corruptly endeavoring to obstruct justice by lying to the Probation Office, and making false statements to judicial officials. Arhebamen was tried before a jury in 2003 on these new charges and was convicted on all counts. After applying six different upward departures under the United States Sentencing Guidelines, the district court sentenced Arhebamen to 152 months of imprisonment and to four years of supervised release. This court affirmed Arhebamen’s conviction, but remanded for resentencing pursuant to Booker. The district court again imposed the 152-month sentence and the four-year term of supervised release.
Arhebamen now appeals both sentences. For the reasons set forth below, we VACATE the sentences and REMAND the cases to the district court for resentencing consistent with this opinion.
Among many sensible follow-up questions to this case is why the defendant did not pick a state name for his middle name when he started calling himself McMaine Allen O’Georgia. Indeed, I cannot help but wonder if the defendants only had the good sense to call himself McMaine von Alabama O’Georgia, perhaps he would have gotten a lower sentence.
New York Times editorial on combatting prison rape
Rape accompanied by savage violence has long been part of prison life. Congress finally confronted this horrendous problem by passing the Prison Rape Elimination Act of 2003. In addition to bringing attention to a long overlooked problem, the new law created a commission that has put forth a broad set of rape-prevention standards that deserve to become mandatory in correctional agencies throughout the country.
The commission report, released earlier this week, should come as alarming news. It suggests, for example, that rapes carried out by corrections officers and inmates are widespread, but the actual rates of rape vary widely from place to place.... Young people in custody are particularly vulnerable. In pilot study of nine youth facilities, nearly 1 in 5 respondents reported one nonconsensual sexual contact during the previous year.
Rape is not inevitable, however. Strong leaders who are committed to fighting the problem can minimize these savage and traumatic assaults. For starters, the commission recommends that all correctional agencies develop explicit, written zero-tolerance policies on this issue....
The report represents a strong first step in confronting this problem. The next step lies with Attorney General Eric Holder, who can approve the report’s recommendations and thereby make the standards mandatory for federal prisons and state prisons that accept federal money.
Recent related posts:
Notable upward variance for white-collar offender
This local federal sentencing story from Massachusetts, which is headlined "Judge throws the book at Cape church swindler," highlights that judges are sometimes eager to bring down the sentencing hammer on certain white-collar criminals:
A federal judge yesterday sentenced a Harwich Port man to 15 years in prison for stealing $14 million from the Natick company where he worked and more than $600,000 from the Cape Cod church where he volunteered. Jeffrey Windle, 42, entered the courtroom wearing brown and tan prison clothes. During the sentencing he looked down.
"While this is not literally a career offender, it has some marks of it," said U.S. District Court Judge George O'Toole in explaining his decision to sentence Windle to one year more in prison than prosecutors requested and 2½ years more than the maximum called for under sentencing guidelines. O'Toole also ordered Windle to pay back all the money he had taken.
Windle was arrested more than a year ago after officials at Cambium Learning Inc. in Natick discovered he had embezzled millions of dollars from the company's accounts. Windle had worked for the previous four years as director of budget and finance at the company, which specializes in educational materials for special-needs students.
Once the FBI began an investigation, officials at the Congregational Church of South Dennis where Windle volunteered as treasurer found money missing from church accounts. Windle took $647,0000 from the church and funneled money from Cambium to his personal bank accounts through the congregation's accounts, according to prosecutors.
He used the money to buy a $1.9 million house in Harwich Port and two million-dollar homes in Florida. He also bought luxury cars and boats. In March Windle pleaded guilty to 24 counts of mail fraud, wire fraud, money laundering and tax evasion.
Windle's family, Cambium officials and church members looked on yesterday as he was sentenced. "I took from them something that probably will affect them the rest of their lives; trust, trust in a friend," Windle told the judge. At one point during his statement Windle broke into tears, saying that he hoped the people he betrayed would someday "know how truly sorry I am."
The small Cape congregation has struggled financially and emotionally since Windle's crimes were uncovered, according to victim impact statements read in court yesterday....
In pleading for leniency Windle's Boston-based attorney, John Moscardelli, said his client had repeatedly expressed shame and embarrassment. Insecurities and low self-esteem that may stem from Windle's relationship with his father could have played a role in his actions, Moscardelli said.
Windle admitted to using the stolen money to buy cars that he had never driven, the accumulation of material goods being his client's only means of proving he was successful in his own mind, Moscardelli said....
Prosecutors painted a very different picture of the man. "He was like basically a one-man crime wave," Justice Department attorney Carmen Ortiz said. Windle stole from the church the "minute he started working there," Ortiz said. "He used that money to aggrandize his life." Windle not only failed to report taxes, he filed false returns claiming donations he never made, she said.
It is stories like this one that makes me think that Bernie Madoff's request for only a 12-year prison sentence will be an awfully hard sell. Like Madoff, this defendant Windle pleaded guilty and apparently accepted responsibility. But, in the face of moving victim impact statements, the judge decided a long prison term was needed. The same is likely to be true in Madoff's case.
The still on-going struggle over lethal injection procedures in Missouri
Anyone who hoped or feared that the Supreme Court's ruling in Baze would help resolve lower court litigation over state lethal injection procedures should check out this new article from Missouri. The piece is headlined "Mo. executions on hold because of federal review," and here are some of the particulars:
The state's incoming chief justice said Tuesday that it was unlikely any executions would be scheduled in Missouri while the courts assess an inmate's lawsuit challenging the state's lethal injection procedure.
Executions had been on hold in Missouri for four years until the state executed an inmate last month. Reginald Clemons' execution was the second scheduled in the state since the courts ruled that lethal injection in general, and the state's three-drug method in particular, was constitutional.
However, the 8th Circuit U.S. Court of Appeals put a hold on Clemons' June 17 execution after his attorneys challenged those lethal injection procedures. They are seeking further court proceedings to ensure Missouri is using competent personnel who will not cause inmates pain with insufficient amounts of anesthesia before lethal injections.
A federal decision in the Clemons case could apply to all Missouri inmates facing execution, incoming Chief Justice William Ray Price Jr. said, so it is unlikely any more would be scheduled. "We're back on hold," Price said in an interview with The Associated Press....
Of the 35 states that allow the death penalty, executions also are effectively on hold because of court cases or moratoriums in California, Delaware, Illinois, Maryland, Nevada and North Carolina, according to the Washington, D.C.-based Death Penalty Information Center. Missouri, once a leading death penalty state, had conducted no executions from October 2005 until this May.
Price said the Missouri Supreme Court has "tried to move as expeditiously as possible" in setting executions but has been slowed by the federal courts. "We can't help that," he added.
In 2006, a federal judge declared Missouri's lethal injection process unconstitutional after the surgeon who was overseeing executions testified he sometimes transposed numbers and operated without written procedures or supervision.
The Missouri Department of Corrections responded by adopting written procedures detailing the precise amounts and order of the chemicals to be injected. A federal judge upheld the protocol in 2008, and the state Supreme Court in February upheld the process by which Missouri adopted the execution procedures.
Clemons' attorneys argued before the 8th Circuit in February that the state has not shown that it can carry out the procedures correctly. The court, which has not yet ruled on the appeal, granted a stay on June 5 without giving a reason.
June 23, 2009
Madoff asking for a 12-year prison sentence
As detailed in this new story in the New York Law Journal, which is headlined "Madoff Lawyer Asks Judge to Ignore 'Hysteria,' Impose 12-Year Sentence," the legal team for Bernie Madoff has come up with an interesting proposed sentencing number:
If you are arguing that Bernard L. Madoff should be given a break, you work with what you have. Attempting to mitigate a maximum sentence of 150 years for a client whose name has become synonymous with greed, defense attorney Ira Lee Sorkin asked a federal judge this morning to set aside the "hysteria" generated by of the largest Ponzi scheme in history and give Mr. Madoff only 12 years in prison.
In a letter to Southern District Judge Denny Chin, Mr. Sorkin argued as a fallback that a 15-to-20 year term would accomplish the goals of the sentencing laws "without disproportionately punishing" Mr. Madoff. "We seek neither mercy nor sympathy," Mr. Sorkin said, promising that at his scheduled sentencing on Monday Mr. Madoff "will speak to the shame he has felt and to the pain he has caused."
Thanks to the folks at the NYLJ, everyone can (and should) check out the sentencing letter sent from the Madoff team to Judge Chin at this link.
Some related Madoff sentencing posts:
- "Will Madoff ever leave prison alive?"
- Running the federal sentencing guideline numbers for Bernie Madoff
- "Death penalty for white-collar criminals?"
- "Madoff's $lick Try"
- "Madoff Mercy: How long should the Ponzi schemer go to prison for?"
- White-collar fraud meets technocorrections for Bernie Madoff
- Notable criminal justice echoes of the Madoff mess
- FSR issue focused on white-collar sentencing
Notable new paper on doctor involvement in executions
I just learned from a helpful reader about this new article by Ty Alper on SSRN titled, "The Truth about Physician Participation in Lethal Injection Executions." Here is the abstract:
This Article addresses an aspect of Baze v. Rees (the Court’s recent lethal injection decision out of Kentucky) that has received little attention but threatens to have a significant impact on the way in which the holding of Baze is implemented in other states. In short, several of the Justices’ opinions in Baze were premised on the faulty notion that doctors cannot and will not participate in executions. As a result, several Justices appeared to rule out the feasibility of a remedy requiring physician participation, and openly expressed suspicion of the motives of lawyers who would propose such a remedy.
This Article seeks to expose two myths that have come to dominate the capital punishment discourse: first, that requiring physician participation would grind the administration of the death penalty to a halt; and second, that advocacy for such a requirement is a disingenuous abolitionist strategy as opposed to a principled remedial argument. As the Article demonstrates through a review of available research and recent litigation, doctors can, are willing to, and in fact do regularly participate in executions. States, however, have strategically emphasized the positions of national medical associations (the ethical guidelines of which are not binding on doctors) and exaggerated their inability to find willing doctors. They have also exploited the activism of the death penalty abolitionist movement, which has long decried physician participation in executions. Lawyers for death row inmates -- many of whom consider themselves abolitionists -- have argued in litigation that skilled anesthetic monitoring by trained medical professionals is a necessary component of a constitutional three-drug lethal injection protocol. Abolitionist calls for discipline of medical professionals who participate in such executions directly undermine the credibility of this position, and feed the perception that death penalty lawyers are talking out of both sides of their mouths.
Lower courts now grappling with how to implement Baze should know the truth about physician participation. The requirement that trained medical personnel monitor lethal injection executions to ensure that inmates do not suffer excruciating pain should remain on the table as a plausible remedy. Courts should recognize the discussion in Baze on this issue for what it is: dicta, unaided by the record, and based on unfounded assumptions.
Intriguing Ninth Circuit ruling on scope of Apprendi's prior conviction exception
The Ninth Circuit handed down an interesting little habeas ruling today in Kessee v. Mendoza-Powers, No. 07-56153 (9th Cir. June 23, 2009) (available here). As this start to the short Kessee opinion highlights, one probably needs to be a hard-core Apprendi and/or habeas fan to really appreciate the panel's work here:
What is the scope of the “prior conviction” exception to the general rule that a sentencing judge may not make factual findings that increase the statutory maximum criminal penalty? The Supreme Court has not yet answered that question. Accordingly, the answer depends on what level of scrutiny we apply to the sentencing decision. When we review de novo, we make an independent determination of the scope of the prior conviction exception, using our normal interpretative methods. When our review is constrained by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), though, we cannot grant habeas relief unless the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). Thus, under AEDPA, even if this court has reached a particular conclusion about the scope of the prior conviction exception, our view may not be the only reasonable one; if the state court’s interpretation is also reasonable, we must deny habeas relief.
June 23, 2009 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (2) | TrackBack
Major CBC event on "Rethinking Federal Sentencing Policy"
As detailed in these notices from The Sentencing Project and FAMM, the Congressional Black Caucus Community Re-Investment Taskforce has a great program planned for Wednesday, June 24 on "Rethinking Federal Sentencing Policy." Here is how The Sentencing Project describes the event:
The Congressional Black Caucus Community Re-Investment Taskforce is hosting "Rethinking Federal Sentencing Policy," in honor of the 25th Anniversary of the Sentencing Reform Act Wednesday at 4:30. Brief remarks will be offered by Eric Holder, Attorney General, U.S. Department of Justice and the Hon. Stephen Breyer, Associate Justice Supreme Court of the United States. The event will be held at the United States Capitol Visitor Center in the Orientation Theatre-South in Washington, DC.
After the remarks by AG Holder and Justice Breyer, the event will have a series of panels with superstars talking about "Mandatory Minimums" and the "Disparity Between Crack and Powder Cocaine" and "Good Time, Community Corrections and Reentry."
Major report on combatting prison rape finally released
As detailed in this Washington Post article, a long awaited report from the National Prison Rape Elimination Commission has finally been released:
Nearly six years after President George W. Bush signed legislation to reduce prison rape, a blue-ribbon commission is calling on corrections officers to identify vulnerable inmates, offer better medical care and allow stricter monitoring of their facilities.
The National Prison Rape Elimination Commission, in a study to be released today, affirms that more than 7.3 million people in prisons, jails and halfway houses across the nation have "fundamental rights to safety, dignity and justice."
The number of rapes committed by detention staff members and other inmates remains a subject of intense scrutiny. A 2007 survey of state and federal prisoners estimated that 60,500 inmates had been abused the previous year. But experts say that the stigma of sexual assault often leads to underreporting of incidents and denial by many of the victims. Too often, the report says, sexual abuse of prisoners is viewed as a source of jokes rather than a problem with destructive implications for public health, crime rates and successful reentry of prisoners into the community....
The panel hosted hearings and visited 11 corrections sites before issuing its report. Among the strongest recommendations: Staff members should be subject to robust background checks and given training, which could help victims of sexual assault secure emergency medical and mental health treatment.
Panel members are preparing to send their report to Attorney General Eric H. Holder Jr., who will have one year to prepare mandatory national standards. The recommendations will not bind state corrections officers, but states that do not adopt them will have their criminal justice funding cut, panel members said.
June 22, 2009
"Will Madoff ever leave prison alive?"
The title of this post is the headline of this new piece at CNNMoney. Here is how the piece starts:
Convicted Ponzi scammer Bernard Madoff will probably spend the rest of his life in jail. On June 29, Judge Denny Chin of the U.S. District Court in New York sentences the 71-year-old. The maximum sentence is 150 years in a federal prison, based on Madoff's guilty plea to 11 criminal counts, including fraud, money laundering, perjury, false filing with the Securities and Exchange Commission, and other crimes.
"[The Ponzi scheme's] effect on society was widespread," said Ken Rubinstein, asset protection lawyer with the New York firm Rubinstein & Rubinstein. "Its effect on individual victims was economically and psychologically catastrophic. I can't see how any judge would sentence him for any period that would be less than his remaining lifespan."
Victims of Madoff's scheme have appealed to Judge Chin for a sentence that would insure Madoff stands no chance of getting out. Leonard Forrest of Port St. Lucie, Fla., wrote to the judge that Madoff "deserves at best to spend the rest of his life in prison just as we will spend the rest of our lives in financial ruin and emotional and physical devastation."
Given the severity of Madoff's crimes, legal experts believe his victims will probably get their wish. Thus far, federal investigators have identified 1,341 investors in Madoff's firm, with losses exceeding $13 billion, and they're not done tallying up the damage.
In other words, the smart money is betting that the answer ot the question in this title of this post is "No."
"A Clean Version Of Hell"
The title of this post is the title given to this 60 Minutes segment, which ran last night and discusses the federal supermax prison in Colorado. The piece is mostly a re-run of an earlier segment, but the introduction highlights its new salience in light of the possibility of moving some GTMO detainees to the facility. Here is how 60 Minutes describes the piece:
A look at the secretive "Supermax" federal prison, where the nation's most dangerous and infamous criminals are held under the strictest rules. Scott Pelley reports.
Some related Supermax posts:
Lots of new reading for Second Amendment fans
I have noticed that a wave of Heller and Second Amendment scholarship is starting to crash on the beaches of SSRN. Specifically, these four new pieces have all showed up in just the last few weeks:
Heller and Nonlethal Weapons by Craig S. Lerner & Nelson Lund
Scope of Second Amendment Right - Post-Heller Standard of Review by Ivan E. Bodensteiner
Heller High Water? The Future of Originalism by Jamal Greene
This new set of pieces has me thinking that Heller is a case that has far more impact on scholarly agendas than on actual gun regulations. The pieces also have me wondering if anyone is actively working on a Second Amendment casebook or reader, which could make life a lot easier as I gear up to teach a Second Amendment seminar in the fall.
Some recent related Heller and Second Amendment posts:
- First(?) significant(?) Second Amendment ruling favoring a federal criminal defendant
- Seventh Circuit resists extending Second Amendment to the states
- NRA quickly petitions SCOTUS for Second Amendment incorporation
- 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?
- The lack of originalist justification for excluding felons from the Second Amendment
- Assailing the unjustified Second Amendment limits in Heller
- Notable new Alaska appellate decision on denying gun rights to non-violent felons
- "Why Can’t Martha Stewart Have a Gun?"
- What might 2009 have in store for . . . Second Amendment jurisprudence?
"Prison spending still shackles state budget"
The title of this post is the headline of this effective commentary from a local paper in Colorado. Here are a few excerpts from a piece that effectively spotlights how significant and consequential prison sepnding has become in that state:
Recent history shows that prison spending in Colorado, and the sentencing polices that drive that spending, has been constraining state spending for decades, and will continue to do so into the near future.
In 1985, the Legislature doubled the maximum penalties in Colorado's presumptive sentencing range for all levels of felony crimes. The average sentence length quickly increased by two-thirds, and Colorado's inmate population more than doubled in the next five years. It has more than doubled again since.
In an effort to keep pace with the capacity demands of such unprecedented growth in the prison population, successive legislatures and governors have taken Colorado taxpayers on an extreme prison spending spree that has pushed corrections spending from less than 3 percent to nearly 9 percent of general fund spending.
It is a simple formula, but a dramatic increase in spending for one item as a percentage of the state's general fund (prisons) necessarily means that other spending items (such as health care and higher education) have had to decrease as a percentage of general fund appropriation.
This year's Joint Budget Committee budget briefing notes that in the 16 years since Colorado lawmakers implemented the 6 percent spending limit, prison spending has grown "at a compound annual rate of 9.5 percent." If prison spending had actually been held to the 6 percent growth, then last year's Department of Corrections operating budget would have been around $430 million; instead it was nearly $677 million.
So the current opportunity cost of Colorado's extreme prison spending spree is a quarter billion dollars that could have been spent on health care and higher education.
This commentary serves to highlight, yet again, why I think anyone concerned about government growth and excessive government spending needs to be focusing on sentencing reform. Beyond the opportunity costs noted in this commentary, there is the inevitable additional costs from increased prison populations that get passed on to both state and federal taxpayers.
Some recent related posts about the realities of the prison economy:
- The state of cost problems in the states of prison nation
- "To Cut Costs, States Relax Prison Policies"
- "Shrinking State Budgets May Spring Some Inmates"
- "Ohio lawmakers mull sweeping reform to cut prison populations"
- Notable report on the impact of the prison economy in the Sunshine State
- Fascinating fights over how to pass the prison buck in California
- "Low-level felons add millions to spending"
- "Tough sentencing harder on budgets than on crime"
Supreme Court grants cert on federal sex offender civil confinement
As detailed in this order list, the Supreme Court this morning granted cert on United States v. Comstock, which concerns Congress's authority to enact a federal statute permitting court-ordered civil commitment by the federal government of “sexually dangerous” persons. This case technically has more to do with congressional power than with sex offenders, but the sex-offense setting still makes this a case to watch for sentencing fans.
Some related posts:
- Fourth Circuit finds federal sex offender civil commitment law unconstitutional
- "Release of sex offenders delayed"
- Two significant sex offender rulings on constitutional issues from the Eighth Circuit
UPDATE: At SCOTUSblog here, Lyle Denniston has this description of the grant in Comstock and the other criminal justice case that the Justices took up today:
The Supreme Court, granting review of three cases Monday, agreed to settle the constitutionality of a 2005 law giving federal officials authority to order the long-term confinement of individuals considered to be sexually dangerous (U.S. v. Comstock, 08-1224).
In an important case on the scope of “Miranda rights,” the Court said it would decide whether those warnings to a suspect in police custody must exclude an explicit assurance that the individual may have a lawyer in the room while questioning goes on (Florida v. Powell, 08-1175).
The telling failure to make serious use of the clemency power in Maryland
This Washington Post article, headlined "O'Malley Puts the Brakes on Clemency in Md.: Governor Prepares to Clear 7, His First Such Cases, and Remains Far Behind Ehrlich's Pace," highlights how a governor who has been eager to end the death penalty has not show eagerness to use his clemency power. Here are some details:
During his four years as governor of Maryland, Robert L. Ehrlich Jr. (R) drew national notice for the aggressive use of his executive clemency powers, pardoning or commuting the sentences of 249 convicts, including several serving life sentences for murder. His successor, Gov. Martin O'Malley, has quietly but abruptly reversed that trend.
Nearly 2 1/2 years into his term, O'Malley is preparing to grant his first pardons, to seven people convicted years ago of such crimes as petty theft and disorderly conduct. Those cases were advertised Friday, as required by law, in a legal newspaper. O'Malley's only previous acts of clemency were releasing two prisoners who were in advanced stages of AIDS. Both were required to return if their conditions improved.
O'Malley (D), a former mayor of Baltimore, said he views clemency requests as less pressing than his other public-safety priorities, including expanding a state DNA database used to solve crimes. "I suppose my orientation from being a big-city mayor and having seen the violence on our streets is more of a tough-on-crime orientation," he said. "You probably won't see me doing as many of these as past governors."
In an interview, Ehrlich declined to comment directly on O'Malley's approach but said he received little criticism for his more expansive approach. "The criminal justice system has flaws, and it's the job of the governor, when appropriate, to correct those flaws," Ehrlich said. "When you try to make the system better, you don't get much criticism."
The state's last Democratic governor, Parris N. Glendening, was loath to commute life sentences, a view O'Malley said he shares. Glendening did pardon 134 former convicts during his eight years in office....
In Maryland, Ehrlich drew praise from some unlikely sources for his prolific use of clemency powers. Shortly before leaving office in January 2007, Ehrlich issued a statement citing the number of "good people who make mistakes in life" whom he had been able to help.
During his tenure, Ehrlich granted 228 pardons to former convicts and rejected applications from 211 others. Perhaps more noteworthy were 15 commutations of sentences of current prisoners, including five serving life sentences for murder.... Ehrlich also released six prisoners for medical reasons....
O'Malley, an opponent of capital punishment, said he would review death penalty sentences "on a case-by-case basis" with the possibility of commuting them to life without parole. He did not elaborate, but aides said such decisions are not likely to be made anytime soon.
Maryland has had a de facto moratorium on capital punishment since December 2006, when the state's highest court ruled that lethal injection procedures had not been properly adopted. O'Malley reiterated his plans to introduce new regulations "shortly," now that the legislature has failed to heed his call to repeal the death penalty in each of the past three legislative sessions....
Governors have typically pardoned more former convicts in the latter part of their terms, but O'Malley is well behind the paces of Glendening and Ehrlich. By the end of his second year in office, Glendening had approved 25 applications. By the end of his second year, Ehrlich had approved 63, a figure that grew to 127 by the end of his third year.
The number of applications pending in Maryland has grown to 663, up from 274 when O'Malley took office, according to parole officials. Regardless of how many of those are approved, O'Malley said his administration should do a better job of addressing the backlog. "People at least deserve an answer," he said.
I call Governor O'Malley's failings here "telling" because this story represents, in my view, how anti-death-penalty advocacy distorts and harms other parts of the criminal justice system. I think it is fair to suggest that Governor O'Malley, because he has been investing so much time, energy and political capital on eliminating the death penalty in Maryland, has been unable or unwilling to invest needed time, energy and political capital on his clemency duties.
June 21, 2009
"Death penalty decisions loom for Barack Obama"
The title of this post is the headline from this new article at Politico. Here are excerpts from the start of a lengthy and informative article by Josh Gerstein:
For the first time in his career, President Barack Obama may soon confront one of the most weighty and unsavory decisions that a chief executive must make, whether to put a murder convict to death.
The decision could land on Obama’s desk within a matter of months, due to cases winding their way through the federal courts. And while Obama is on record supporting the death penalty for particularly heinous crimes, that’s a far cry from deciding whether a specific man’s life should be taken or spared.
“The death penalty in the abstract is one thing. The reality of the death penalty and all of its nasty details is a very different thing,” said Dianne Rust-Tierney of the National Coalition Against the Death Penalty. “This is something that this president is not the only one to face…. Having seen this thing in practice, you see it as a very different animal.”
Already, with little press attention or protest from the anti-death penalty camp, Attorney General Eric Holder has authorized federal prosecutors to seek the death penalty for at least four defendants since Obama took office. In all, 55 men and two women are on federal death row, death-penalty opponents say.
But the timing of Obama’s first death-penalty decision is likely to be dictated by a case pending in Washington, involving six federal death-row inmates at most imminent risk of execution. Their sentences were stayed by a federal judge, who is deciding whether to let their executions proceed, despite their challenge to federal execution protocols.
The cases involve three members of a Richmond, Va., gang sentenced to death in 1993 for drug-related murders; two men sentenced to death for abduction, sexual assault and murder of a 16-year-girl; and another man convicted of killing a prison guard. All six defendants are black.
If the stay is lifted and execution dates are set, any of the men could ask the president to step in. And clearly, death-penalty opponents hope they have a sympathetic ear in Obama, despite his support for the limited use of executions. They hope he will try to impose more safeguards in federal capital cases, and even spare some prisoners. And they note that Holder once authored a ground-breaking federal study that found racial disparities in death penalty cases.
New report urging drug sentencing reform in Massachusetts
This press release made available at FAMM provides this report on a new state bar report urging drug sentencing reforms in Massachusetts:
Massachusetts must enact meaningful drug reform for non-violent offenders, focusing on education and treatment instead of incarceration and punishment, according to a report of the Massachusetts Bar Association’s Drug Policy Task Force. Mandatory minimum sentencing reform and diversion to treatment, alone, could save the state more than $25 million a year.
“This comprehensive report has identified many ways in which our drug policy in Massachusetts needs repair,” said David W. White Jr., MBA past president and chair of the MBA Drug Policy Task Force. “These are problems that we cannot afford to ignore. We have made several recommendations which will reduce the rate of crime, which will save the taxpayers money and which will help rebuild families and communities.”
Converting from criminal prosecution of non-violent drug offenders to treatment of their addictions is the overall message of the report, “The Failure of the War on Drugs: Charting a New Course for the Commonwealth.” A product of more than one year of research and consideration, the report was created by a task force of nearly three dozen prominent leaders, including lawyers, law enforcement, the judiciary, mental health professionals, physicians, social workers and public policy advocates.
The full report is available at this link. Here is the first paragraph of the executive summary:
It has become evident that the Commonwealth’s policies with regard to drug education, drug treatment, and punishment for drug offenses are ineffective. The system is broken and it is badly in need of repair. Drug education programs fail to effectively educate the young and to reduce the likelihood of their using alcohol and drugs. Treatment opportunities are limited by lack of funding, and residents who could benefit from treatment are denied the opportunity. Many end up in jail or prison, where treatment is again limited. Incarceration is not an effective deterrent to most drug crimes, and the current sentencing system, including mandatory minimum sentences for many drug offenses, does not effectively reduce the likelihood of recidivism. The taxpayers of Massachusetts could get far greater value for their taxes with improved education and treatment. Changing policies from emphasis on incarceration to more encouragement for treatment would allow us to save money, reduce crime, and rebuild families and communities.
Notable recent comments about sentencing reforms from AG Holder
Thanks to this post at TalkLeft, I saw that Attorney General Eric Holder spoke about the crack-powder sentencing disparity and other drug sentencing issues on Friday at the D.C. Court of Appeals Judicial Conference. His speech is available at this link, and here are some of the notable sentencing comments:
In my career as a prosecutor and as a judge here in Washington, I often saw too many capable, fundamentally good young people sacrifice their claim to a future because they chose to become involved in criminal, but non-violent, narcotic offenses. Now, the Department of Justice will never back down from its duty to keep neighborhoods safe from the ills of drug abuse and the collateral damage from narcotics trafficking. But we need to make sure we discharge this duty in a way that is fair and right. And to do that, we have to take time to think through our approach to sentencing.
It is the view of this Administration that the 100-to-1 crack-powder sentencing ratio is simply wrong. It is plainly unjust to hand down wildly disparate prison sentences for materially similar crimes . It is unjust to have a sentencing disparity that disproportionately and illogically affects some racial groups. I know the American people can see this. And that perception of unfairness undermines governmental authority in the criminal justice process and breeds disrespect for the system. It leads victims and witnesses of crime to think twice before cooperating with law enforcement, tempts jurors to ignore the law and facts when judging a criminal case, and draws the public into questioning the motives of its officials. The result is that some drug offenders wind up right back on the streets without any punishment or rehabilitation and some go to jail for long and unfair periods of time – which is exactly the opposite outcome that tougher sentencing laws were meant to ensure.
I am confident that most of us agree that this situation benefits no one and must be reformed. But we also know that doing so won’t be an easy task. Agreeing on the problem is just the beginning, and we need to all put our heads together to come up with the fairest solution. If our goal is to arrive at a 1-to-1 ratio, how do we get there? We are asking this question now at the Department, alongside related questions, such as what the role of reentry programs for the incarcerated should be in a fully realized system of justice.