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July 8, 2009

Two (very?) important rulings on sentencing authority from the Sixth Circuit

Today the Sixth Circuit published two important sentencing opinions: a long new one covering lots of issues in US v. Herrera-Zuniga, No. 08-1540 (6th Cir. July 8, 2009) (available here), and a short older and previously unpublished one in US v. Perez-Vasquez, No. 07-6390 (6th Cir. April 30, 2009) (available here).  I think both are today's must-reads even for federal sentencing practitioners outside the Sixth Circuit.

In both Herrera-Zuniga and Perez-Vasquez, the Sixth Circuit panel rejects defendants various claims that their sentences are unreasonable.  In so doing, however, both opinions include passages discussing the nature and scope of the discretion of district judges at sentencing than seem likely to make federal defense attorneys happier than federal prosecutors.

As the title to this post is meant to suggest, I am confident when I describe both opinions as important.  But I will need a bit more time to review and reflect on whether either or both are VERY important.  Perhaps federal sentencing practitioners both inside and outside the Sixth Circuit can help me figure this out.

July 8, 2009 in Booker in the Circuits | Permalink | Comments (10) | TrackBack

In praise of Texas justice (and shame on the press and public policy activists) on juve LWOP

Thanks to a comment to this post, Scott of Grits for Breakfast informed me that "Texas abolished life without parole for juveniles this year legislatively. The Governor signed it.  It's now a 40-year minimum for juveniles convicted of capital murder in TX.  Here's the legislation."  In addition to being quite pleased and impressed that Texas passed legislation to reduce sentences for certain juvenile killers, I was troubled that I had completely missed this interesting and important story about a change to Texas justice.

I then spent some time this morning looking for press reports about this new legislation and/or materials about this notable Texas reform from various public policy groups that focus on juvenile justice issues.  Disappointingly and aggravatingly, I could not find ANY significant media coverage or materials from public policy groups about this reform to Texas justice.  (Grits had a few helpful posts on bill here and here and here, but these posts only confirmed my sense that this Texas story deserves a lot more attention.)

The troublesome silence about the Texas reform is especially notable because many folks are now focused on juve LWOP issues because of the Supreme Court's decision to consider the constitutionality of two non-murder) juve LWOP cases from Florida.  And, as death penalty fans know, state legislative developments are central to the Supreme Court's modern Eighth Amendment jurisprudence.  I sure hope that folks writing briefs in the SCOTUS cases of Graham and Sullivan are aware of this recent important reform in Texas justice even though it has been overlooked and ignored by the media and public policy groups.

Because I am eager to know a lot more about this Texas reform to severe juve sentencing, I hope anyone and everyone with additional information and/or materials concerning this legislative change will send stuff my way (or provide links in the comments to this post).

July 8, 2009 in Graham and Sullivan Eighth Amendment cases | Permalink | Comments (8) | TrackBack

What are proper sentencing considerations for forty-year-old crimes?

This article, headlined " Elderly Man Appeals Sentence On Historic Sex Charges," present is an interesting sentencing story from New Zeland:

Neville Earnest Hearling, then 76, from Wanganui, was sentenced in March to three years and three months in prison.  He was convicted of performing indecent acts on several boys, aged between nine and 15, when he was a softball and rugby league coach in the 1960s and 1970s.

When interviewed for a pre-sentence report Hearling claimed he could not be held responsible for his actions as he had a mental illness, prosecutor Nick Webby said.  "I may have offended but I am not taking full responsibility for it because of my illness," Hearling told a probation officer.

In the Court of Appeal today defence counsel Jonathan Wiles said the starting point for the sentence was too high.  Justice Forrest Miller said there had been no evidence provided that Hearling did in fact suffer from mental illness.

Mr Wiles then produced a doctor's report in which Hearling was diagnosed with depression and possible early signs of dementia.... Mr Wiles then drew attention to Hearling's age and described him as, "a frail old man" who would struggle in jail.

Crown prosecutor Megan Inwood told the court Hearling had already received a "generous" discount of nearly 50 percent on his sentence for those reasons plus his guilty plea.

Justice Randerson said it was a difficult case to consider as if the victims had complained sooner, Hearling would not have enjoyed such a discount for his age.  Justice Ellen France said Hearling had also benefited from more lenient sentencing guidelines introduced after his offending. The court reserved its decision.

This report makes unclear whether the defendant here claims that he had a mental illness at the time of his crimes or just now as he finally is to pay for his crimes.  Whatever the particulars, it is hard to disagree with the sentiment of the Justice who called this a "difficult case" because so many decades elapsed between the time of the crime and the time of sentencing.

July 8, 2009 in Offender Characteristics | Permalink | Comments (0) | TrackBack

July 7, 2009

"Sotomayor Seen As Moderate On Criminal Justice"

The title of this post is the headline given to this segment that ran this afternoon on NPR's All Things Considered.  Here is how the segment is described:

Analysts see Judge Sonia Sotomayor as a moderate whose decisions in criminal cases rarely differ from those of her colleagues on the federal bench.  Some say her experience as a prosecutor and her record on the bench might make her more conservative than Justice David Souter on criminal justice issues.

Some recent posts about Judge Sotomayor's criminal justice record:

July 7, 2009 in Who Sentences? | Permalink | Comments (22) | TrackBack

Gearing up for the SCOTUS juve LWOP cases on the horizon

I was pleased to receive word this week that the Institute of Bill of Rights Law had chosen one of the two juve LWOP cases, Sullivan v. Florida, for its moot court event as part of its Supreme Court Preview 2009-2010.  The Institute's decision to moot this juve LWOP case confirms my instinct that Sullivan (and the companion case Graham) are perhaps the most important and interesting cases on the Supreme Court's current docket. 

Adding to my excitement, today I came across this effective new piece about Graham and Sullivan from the online magazine Miller-McCune.com.  The piece is titled "Should Minors Ever Face Life Without Parole?," and here are a few excerpts:

In the term beginning this October, the Supremes will hear two cases — one involving a 13-year-old sex offender, the other a 17-year-old probation violator present when a felony murder occurred — both aiming to challenge life-without-parole sentences for juveniles (known by the unwieldy acronym JLWOP). Concurrently, the House Subcommittee on Crime, Terrorism and Homeland Security has been gathering testimony on a bill that would mandate parole hearings for JLWOP prisoners. The bill covers federal cases and gives states a financial incentive to comply with its terms.

"There is so much attention on this issue right now," says Baylor Law School professor Mark Osler, who has testified in favor of the proposed House bill, H.R. 2289. "I think in part it's because you have groups doing a good job advocating on it, and the idea is becoming more and more prevalent — that instead of wholesale change, we are smoothing off the rougher edges of the justice system, and that includes a focus on children."

Opponents to a change suggest that a focus on the prisoners as children, and not offenders, is wrong-headed and ahistorical. In its brief before the Supreme Court in the 13-year-old sex offender case, the State of Florida Attorney General's Office wrote, "Outside the context of the death penalty, this Court has always examined whether a sentence is grossly disproportionate under the Eighth Amendment by examining the sentence in relation to the offender's instant offense and prior offenses, not the individual characteristics of offender, such as age or mental capacity."...

The United States is one of the few countries that hand out JLWOP sentences. A 2005 Amnesty International study found that life without parole for juveniles is theoretically available in a dozen countries, but besides the U.S., only three others actually had teens serving such sentences — Israel with seven, South Africa with four and Tanzania with one.

In contrast, Sentencing Project Executive Director Mark Maurer noted in his testimony before the House subcommittee that 2,500 U.S. teenagers are incarcerated with no hope of release, most of them people of color. A majority of these — as many as 60 percent — are first-time offenders, and more than one quarter were convicted of felony murder, meaning they were participating in a crime when a murder occurred, but didn't do the actual killing.

Other recent posts on juve LWOP and the Graham and Sullivan cases:

July 7, 2009 in Graham and Sullivan Eighth Amendment cases | Permalink | Comments (6) | TrackBack

Defense attorneys arguing for lower sentence because Travis Henry was "duped" into drug crime

This new story from USA Today, headlined "Lawyers: Travis Henry 'duped,' deserves light sentence,"  indicates that another NFL player in trouble with the law is hoping to run to sentencing daylight with a notable sent of legal moves:

Attorneys for Travis Henry say the former NFL running back deserves a light sentence in his federal cocaine trafficking case because he was "duped" by friends in the drug trade.

Federal agents have described Henry as the "money guy" in an operation that moved cocaine between Denver and Billings before it was busted up last year.  Henry, of Frostproof, Fla., pleaded guilty in April to trafficking at least 11 pounds of cocaine and faces a possible 10 years or more in federal prison.

His attorneys say Henry was taken advantage of by his co-defendants — at a time when he was under "severe emotional and mental distress" following his release from the Denver Broncos last year.  Sentencing is set for July 15, before U.S. District Judge Richard Cebull in Billings.

July 7, 2009 in Offense Characteristics | Permalink | Comments (0) | TrackBack

Ninth Circuit discusses consideration of state-federal disparities after Booker

In a narrow little opinion today in US v. Ringgold, No. 06-10492 (9th Cir. July 7, 2009) (available here), the Ninth Circuit discusses the consideration of state-federal disparities after Booker.  Here is how the opinion starts:

This appeal concerns the question whether, after United States v. Booker, 543 U.S. 220 (2005), a district court abuses its discretion by declining to consider the disparity between a recommended Guidelines sentence and the maximum sentence a defendant would receive if convicted of the same conduct in state court.  Under the circumstances presented by this case, we hold that the district court did not abuse its discretion or commit procedural error in declining to consider such a disparity.  Additionally, we hold that the sentence imposed by the district court was not substantively unreasonable.

July 7, 2009 in Booker in the Circuits | Permalink | Comments (19) | TrackBack

Important research that could help with reentry efforts

This new article in USA Today, which is headlined "Study could ease concerns over hiring ex-offenders," provides a report on a new study that has the potential to help reentry efforts for ex-offenders.  Here are the basics: 

A study funded by the Justice Department concludes that over time accused robbers, burglars and batterers pose no greater risk to employers than job candidates in the general population.

In a review of 88,000 arrestees in New York state, Carnegie Mellon University investigators found, for example, that after about 7 1/2 years the "hazard rate" for an 18-year-old first-time arrestee for robbery declined to the same rate as an 18-year-old in the general population.  For 18-year-olds arrested for aggravated assault, it took about four years to reduce the risk.  Hazard rates are calculated based on the time the suspect remains free from re-arrest. The calculation also accounts for the fact that risk of arrest generally declines with age.

"We believe that our analysis provides the criminal justice community with the first scientific method for estimating how long is long enough for someone with a prior record" to no longer be considered a special risk, according to the study authored by Carnegie Mellon criminologist Alfred Blumstein.   Blumstein and other criminal justice analysts say the ongoing research could ease employers' concerns about hiring former offenders and perhaps spark new legislative proposals to limit the liability for employers who do hire them....

The Society for Human Resource Management estimates that 80% of U.S. employers perform background checks. An estimated 74 million criminal records were contained in automated databases across the U.S., according to the Bureau of Justice Statistics. "Computerized criminal records can have long memories, and this (study) is intended to provide guidance for imposing some limits to that memory," Blumstein says.

The study focused on three offenses — robbery, burglary and aggravated assault — because they represented some of the largest sample numbers. Murder was not included in the report and will not be part of future reports, because, Blumstein says, "nobody fully redeems a murderer."

"People are finally starting to get it. They would rather see people working, than to shut people out," says Veronica Ballard, a vice president of the Safer Foundation, which helps ex-offenders find work.

Rep. Danny Davis, D-Ill., a sponsor of the Second Chance Act legislation designed to re-integrate offenders back into society, says any measure that might encourage potential employers to hire ex-offenders is a "powerful" tool.

July 7, 2009 in Reentry and community supervision | Permalink | Comments (14) | TrackBack

"Improving Prison Oversight to Address Sexual Violence in Detention"

The title of this post is the title of a new "Issue Brief" by Melissa Rothstein and Lovisa Stannow being distributed by the American Constitution Society.  The issue brief can be downloaded at this link, and here is the ACS's description of the paper:

In 2003, Congress focused national attention on the problem of sexual violence in our prisons, jails, and detention facilities when it passed the Prison Rape Elimination Act (PREA).  A commission created under the law just completed a comprehensive, five-year process that resulted in recommended national standards designed to address the problem, and Attorney General Eric Holder has one year to review the recommended standards and adopt final binding national standards.  When adopted, the standards will immediately apply to all federal detention facilities, and states will have one year to certify their compliance or risk losing 5% of their federal corrections-related funding.  Rothstein and Stannow argue that the national standards "have the potential to dramatically improve the safety of corrections facilities nationwide for officers and inmates alike."

In their Issue Brief, Rothstein and Stannow discuss the urgent need for national standards addressing sexual abuse in detention, in addition to a strong monitoring system to improve safety in detention facilities. The authors detail the problem of sexual violence in detention and its systemic and managerial underpinnings. They then discuss the recommended national standards, and examine the need for improved corrections oversight and the vital role that the national standards can play.  Finally, Rothstein and Stannow conclude by urging the Attorney General to ratify the recommended standards, as well as establish a strong, independent mechanism for measuring compliance.

Recent related posts:

July 7, 2009 in Prisons and prisoners | Permalink | Comments (3) | TrackBack

A worldly perspective on different execution methods

This BBC article, headlined "Top Indian court upholds hangings," highlights that, outside the United States, not everyone believes that lethal injection is the only way to carry out an execution:

India's Supreme Court has rejected a petition to replace hanging with lethal injection as the country's sole method of execution. The court said there was no evidence to suggest that hanging was less painful. Activist Ashok Kumar Walia had argued that hanging was a "cruel and painful" method of execution and should be replaced by lethal injection.

Indian authorities say the death penalty is rarely carried out and is usually reserved for serious cases. Apart from a single execution in 2004, there have been no executions in the country for the past 10 years.

"How do you know that hanging causes pain? And how do you know that injecting the condemned prisoner with a lethal drug would not cause pain?" Chief Justice KG Balakrishnan was quoted by the Times of India newspaper as saying.

Justice Balakrishnan and Justice P Sathasivam said that experts believe that hanging - meant to dislocate the neck and sever the spinal cord -- caused instant death.  "Many countries, still practising death penalty, have various methods of execution -- death squad which guns down a condemned prisoner from close range, hanging by the neck, electric chair and by injecting a lethal drug. "In India, we have a very, very liberal sentencing system based on a humane law.  The courts in the rarest of the rare cases award death sentence," the newspaper quoted the judges as saying.

July 7, 2009 in Sentencing around the world | Permalink | Comments (8) | TrackBack

"Open to the public: U.S. Supreme Court should allow broadcast of oral arguments"

The title of this post is the headline of this editorial from my local Columbus Dispatch.  Here are a few excerpts:

Watching and listening as America's top jurists and leading advocates hash out the fine points of the most important issues facing the nation would greatly enhance public understanding of the court.  Broadcasting the oral arguments -- about 75 per year, typically lasting an hour or so -- would open a window into what is probably the least understood part of federal government.

The all-government, all-the-time cable network C-SPAN has been pushing for camera coverage of court proceedings since 1988. Pennsylvania Sen. Arlen Specter, formerly a Republican, also has urged cameras in the courtroom, twice unsuccessfully introducing legislation to require the court to allow cameras....  Specter, a member of the Senate Judiciary Committee, has put Sonia Sotomayor, President Barack Obama's nominee to replace Souter, on notice that he'll be asking in her confirmation hearing about her views on the matter.

Law and logic are on the side of openness in courts.  The Constitution requires most court proceedings to be open to the public; in the age of electronic communication, little reason exists for limiting the public to those who can fit into the physical space of the courtroom.

Most state courts, including those in Ohio, have been open to cameras for many years.  The Ohio Supreme Court has been broadcasting its own oral arguments since moving into the renovated Ohio Judicial Center in 2004, and Ohio's Chief Justice Thomas J. Moyer considers it a major success, for allowing a greater public understanding of how the court works.

He strongly supports the idea of broadcasting U.S. Supreme Court arguments, calling it "a marvelous educational opportunity" that would impress viewers with the quality of arguments put before the court and questions asked by justices.  "People come from around the world to study our system of justice," Moyer said. "We should be proud of it and show it off."

Speaking as both a law professor and a law blogger, I remain terribly disappointed that the Justices continues to prevent public access to the nation's highest court.  I am hopeful that Senator Specter pushes hard on this front and that Judge Sotomayor becomes a vocal supporter of allowing broadcasting of Supreme Court arguments.

July 7, 2009 in Who Sentences? | Permalink | Comments (12) | TrackBack

Of interesting around the blogosphere

Here are just a few of the great recent posts which ought to be of interest to sentencing fans that I noticed around the blogosphere:

July 7, 2009 in Recommended reading | Permalink | Comments (0) | TrackBack

July 6, 2009

Will bad facts doom a double jeopardy claim brought to SCOTUS in capital case?

This new article in the Washington Post, headlined "Va. Inmate's Lawyers Argue Double Jeopardy," raises the age-old question of whether bad facts often make for bad law.  Here are the basic details (which read almost as if they created by a screen-writer in Hollywood):

Lawyers for a Virginia inmate scheduled to die next week for killing a 16-year-old -- then bragging about it to prosecutors when he thought he couldn't face the death penalty -- are asking the U.S. Supreme Court to stop the execution.

Paul Warner Powell's lawyers argue that he was unconstitutionally convicted twice for the 1999 murder and attempted rape of Stacie Reed.   Powell, 31, was convicted in 2000 of killing Reed and raping and trying to kill her 14-year-old relative. He was sentenced to die for Reed's murder.

The Virginia Supreme Court overturned Powell's capital conviction, saying that Prince William County prosecutors failed to prove Powell tried to rob or rape Reed. In order to face capital punishment, defendants must commit other crimes against the victim or meet other aggravating circumstances.

Thinking he could no longer face the death penalty, Powell wrote a profanity-laced, taunting letter to prosecutors offering graphic detail of how he tried to rape Reed before he stabbed her three times and stomped on her throat until she quit breathing. "Do you just hate yourself for being so stupid and for (messing) up and saving me?" he wrote to Commonwealth's Attorney Paul Ebert in 2001.

Ebert threw out Powell's earlier indictment and charged him with killing and attempting to rape Reed. Powell was convicted again in 2003 and given the death penalty.

Powell's lawyers asked the U.S. Supreme Court to block the execution until it can decide whether his second capital murder charge violated the Fifth Amendment's protection against being tried twice for the same offense.  They argue that convicting Powell the second time "sets a dangerous precedent in which prosecutors now may pursue multiple attempts to secure a sentence of death."

State and federal courts have repeatedly rejected Powell's double jeopardy argument, saying that the original charge was different because he was not accused of attempting to rape Reed.

A divided federal appeals court panel once again denied Powell's claim in April, with Justice Roger L. Gregory dissenting.  Gregory called Powell's crime "atrocious" but said his second conviction amounted to double jeopardy.

"Given the explicit details revealed by Powell in his letter to the Commonwealth's attorney, one understands the strong inclination to prosecute Powell for those heinous acts," he wrote. "Yet, it is in these very cases that we must be most vigilant in protecting our long-standing constitutional guarantees."

Ebert said he didn't think the court would stop the execution because Powell was tried for two separate crimes.  "The two things have entirely different elements, entirely different facts, entirely different victims," he said. "It's not double jeopardy."

The Fourth Circuit's split decision in Powell v. Kelly, No. 08-3 (4th Cir. April 15, 2009), can be accessed at this link.

July 6, 2009 in Death Penalty Reforms | Permalink | Comments (11) | TrackBack

A high-profile case providing a Canadian perspective on white-collar sentencing

This Bloomberg news article, headlined "Prosecutor Seeks 8-10 Years for Ex-Broadway Producers," provides an interesting comparative perspective on white-collar sentencing debates. Here are a few excerpts:

Garth Drabinsky and Myron Gottlieb, once Broadway producers with hits like “Ragtime,” should spend 8 to 10 years in prison for defrauding investors of millions of dollars, prosecutor Alex Hrybinsky said today at the start of a sentencing hearing in Toronto. 

Drabinsky, 59, and Gottlieb, 65, were charged by police in October 2002 with lying about finances at the defunct theater producer Livent Inc. for nine years as they raised about C$500 million ($431 million) to buy theaters in Toronto, Chicago and New York and paid for increasingly lavish productions, including “Fosse” and “Phantom of the Opera.” “This is an enormous fraud,” Hrybinsky said at the hearing. “A sentence of 8 to 10 years is merited.”...

Drabinsky’s lawyer Edward Greenspan urged the judge to consider his client’s contribution to Canadian theater, Toronto’s economy and to use compassion in sentencing considering Drabinsky has suffered from the effects of polio since the age of 4 that left him partially disabled and in pain. “It makes incarceration more difficult,” Greenspan said. “In a practical sense, it makes it more punitive.” Greenspan suggested that Drabinsky should be given a conditional sentence of two years, less a day, of which a year could be served under house arrest and three years probation....

Drabinsky and Gottlieb are fugitives from U.S. law, having being indicted in 1999 on similar fraud charges by a federal grand jury in New York. They have refused to appear in a U.S. court. The U.S. has an extradition request on hold, pending the outcome of the trial in Toronto. Their case has been compared with that of Conrad Black, the former chairman of newspaper publisher Hollinger International Inc. Black was sentenced to 6 1/2 years in prison following a trial in Chicago where he was convicted of defrauding company shareholders of $6.1 million and obstructing justice.

“Conrad Black’s sentence would have been somewhat more lenient if he were prosecuted in Canada,” said Alan Mark, chairman of the Toronto Litigation Group at Ogilvy Renault, who wasn’t involved in the Livent case. “There was a lot of tension between sentencing practices in Canada and the U.S. in Hollinger.”

Interesting case, eh?

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

Hoping criminal justice issues get attention in upcoming SCOTUS confirmation hearing

The National Law Journal has this new piece, headlined "A dozen themes frame Sotomayor hearing," that should help whet appetites for the upcoming Senate confirmation hearing for Judge Sotomayor's elevation to the Supreme Court.  Disappointingly, though not surprisingly, the piece does not mention either Sotomayor's past as a state prosecutor or the current importance (and flux) of huge areas of criminal law jurisprudence as a theme to watch.

It is notable (and probably worthy of some extended analysis) that members of Congress seem so eager to make much of crime and punishment issues in some settings, but then often seem eager to completely ignore these issue in modern confirmation battles.  Of course, the obviously explanation is political: bringing up issues during confirmation hearing concerning, say, Blakely and Crawford Sixth Amendment jurisprudence or Booker and the future of federal sentencing does not score any obvious political points with any obvious constituencies. 

I can and will continue to hope that at least a few Senators might look past short-term political concerns and consider asking questions that might prompt Sotomayor to engage publicly with criminal justice issues that are likely to be of critical importance for many SCOTUS terms to come.  As detailed in some prior posts below, these issues extend beyond the obvious topics of the death penalty and mandatory minimums to "brave new world" topics like GPS tracking and other technocorrections.

Some recent and older posts about Judge Sotomayor and SCOTUS sentencing topics:


July 6, 2009 in Who Sentences? | Permalink | Comments (1) | TrackBack

Potent DOJ response to ABA Journal article about federal child porn sentencing

As noted in this post last month, the June issue of the ABA Journal includes this long article on the debate over federal child porn sentencing titled, "A Reluctant Rebellion."  I just learned about this extended response to the article coming from Alexandra Gelber, the Assistant Deputy Chief of Child Exploitation and Obscenity Section of the Criminal Division of the US Department of Justice. Here is how the extended response starts:

I write in response to Mark Hansen’s article “A Reluctant Rebellion,” which appeared in the June 2009 issue of the ABA Journal.  Although Mr. Hansen’s article raises questions about the child pornography sentencing guidelines, his piece speaks to a much more fundamental question about the legitimacy of the crime at issue.  While Mr. Hansen does not explicitly argue that the collection, trade, viewing, and possession of images depicting the sexual exploitation and abuse of children should be legal, he does strongly question whether the crime should be treated as seriously as it currently is under federal law. Indeed, he writes, “Critics say the mandatory and recommended penalties for child porn offenses under the guidelines far exceed the seriousness of the crime committed by the typical offender who is swapping and downloading child porn online with other like-minded individuals in the presumed privacy of his own home.”

Mr. Hansen’s article perpetuates fundamental misunderstandings about the nature of the crime, the offenders, and the law.  When properly understood, the substance and structure of the criminal provisions and sentences for these pernicious crimes show an appropriate response to an exploding crime problem.

Some related federal child porn prosecution and sentencing posts:

July 6, 2009 in Sex Offender Sentencing | Permalink | Comments (12) | TrackBack

Should we feel good or bad about feeling good about how bad Madoff got punished?

A helpful reader sent along this intriguing little piece discussing the virtues and vices of human instincts for imposing "altruistic punishment."  The piece is titled "Are humans cruel to be kind?" and here is a snippet: 

Our sense of fairness and our willingness to inflict damage on one another combine to encourage contributions to the common good and deter people from cheating.  Researchers call this altruistic punishment.  "But at the end of the day, it's still spite," says economist Benedikt Herrmann of the University of Nottingham, UK.  The benefits of this constructive spite might not be immediate, but they are real -- in the long run, we all benefit more if we can ensure others in society toe the line.

Our brains are certainly wired to respond positively to this constructive form of spite. Although we might lose out financially, scans show that a region called the striatum, which responds to rewarding experiences, lights up during altruistic punishment.  So, problem solved.  Spite is in our own best interests and our brains reward us for it, so we should welcome it, right?

Not quite.  The problem is that it's not only doing bad things to bad people that makes us feel good.  Recent studies have shown how the striatum responds in the same way to schadenfreude, when we take a morally dubious pleasure in others' misfortunes. Adolescent boys with aggressive conduct disorder show similar brain activity when they watch a video of someone hurting another person.

Sadism aside, it is easy to imagine why evolution might have wired us up like this, according to Hidehiko Takahashi of the National Institute of Radiological Sciences in Chiba, Japan, leader of the schadenfreude study.  "Altruistic punishment might bring an indirect benefit to us from society, and schadenfreude a direct benefit from a rival."  But it also suggests that the line between the cooperative and competitive prompts for spiteful behaviour is blurry and subjective.  If the prospect of bankrupting a few fat cats gives us a twinge of pleasure, it is hard to say whether that is because we believe they have robbed society, or because we are envious of their wealth and success and happy to see them toppled.

Though this article was published a few month ago, it is especially interesting to consider in the wake of last week's sentencing of Bernie Madoff.  Specifically, I wonder whether it is good or bad to feel good about the book getting thrown at Madoff.

Most recent Madoff sentencing posts:

UPDATE:  A commentor has suggested that "Frank Rich's column in the Sunday NYT was the best reflection of the Bernie Madoff sentence.  That column, headlined "Bernie Madoff Is No John Dillinger," can be accessed here and starts this way: 

The judge condemned Bernie Madoff’s crimes as “extraordinarily evil.” The New York Daily News, whose publisher was a Madoff victim, chose “The Pariah” as its front-page headline and promised that the dastardly villain would suffer “everlasting consumption in the jaws of the devil.” The Times declared that the Madoff case, by attaching a human face to a financial meltdown that produced fear, panic and loss, had “put an entire era on trial.”

But for all this rhetorical thunder, Madoff’s 150-year sentence still seemed an anticlimax, as if the trial of the century had ended without a verdict. There was no national catharsis. The news landed with something of a thud. On the most-watched network newscast, “NBC Nightly News,” it received second billing to Day Four of updates on Michael Jackson’s death.

July 6, 2009 in Purposes of Punishment and Sentencing | Permalink | Comments (7) | TrackBack

July 5, 2009

"When Governments Kill: A conservative argues for abolishing the death penalty"

The title of this post is the heading for this notable commentary by renown conservative Richard Viguerie, which appears in the July 2009 issue of Sojourners Magazine.  Here are snippets (with emphasis in the original):

The fact is, I don’t understand why more conservatives don’t oppose the death penalty. It is, after all, a system set up under laws established by politicians (too many of whom lack principles); enforced by prosecutors (many of whom want to become politicians — perhaps a character flaw? — and who prefer wins over justice); and adjudicated by judges (too many of whom administer personal preference rather than the law).

Conservatives have every reason to believe the death penalty system is no different from any politicized, costly, inefficient, bureaucratic, government-run operation, which we conservatives know are rife with injustice.  But here the end result is the end of someone’s life.  In other words, it’s a government system that kills people.

Those of us who oppose abortion believe that it is perhaps the greatest immorality to take an innocent life.  While the death penalty is supposed to take the life of the guilty, we know that is not always the case.  It should have shocked the consciences of conservatives when various government prosecutors withheld exculpatory, or opposed allowing DNA-tested, evidence in death row cases.  To conservatives, that should be deemed as immoral as abortion.

The death penalty system is flawed and untrustworthy because human institutions always are. But even when guilt is certain, there are many downsides to the death penalty system.  I’ve heard enough about the pain and suffering of families of victims caused by the long, drawn-out, and even intrusive legal process.  Perhaps, then, it’s time for America to re-examine the death penalty system, whether it works, and whom it hurts.

Hat tip: DPIC.

July 5, 2009 in Death Penalty Reforms | Permalink | Comments (32) | TrackBack

US Sentencing Commission holds regional hearing in New York City this week

As detailed in this brief public notice, the US Sentencing Commission has another one of its regional public hearings on tap for this week.  This third regional public hearing is scheduled for July 9-10, 2009, in New York City will be held in the Ceremonial Courtroom at the US Court of International Trade.

As detailed in this official agenda, a fascinating and diverse group of invited witnesses are scheduled to testify regarding federal sentencing policy.  I am hopeful that all the witnesses' written testimony will soon be made available on-line, and I am especially intrigued to see on the witness list folks like: my very first boss after I graduate law school, Second Circuit Judge Jon O. Newman; the judge who sentenced Bernie Madoff to the max, SDNY District Judge Denny Chin; the judge who write lots of great sentencing opinions, Mass District Judge Nancy Gertner; the Professor who writes lots of great structural sentencing articles, Rachael Barkow; and top cops in NYC and Newark, Raymond W. Kelly and Garry F. McCarthy.

I am hopeful (though not really optimistic) that this regional hearing might get a little extra press because it is taking place in New York.  Of course, I will provide whatever coverage I can from afar in this forum.

July 5, 2009 in Federal Sentencing Guidelines | Permalink | Comments (1) | TrackBack

"In Prisoners’ Wake, a Tide of Troubled Kids"

05prison_grafic_enlarge The title of this post is the headine of this effective article in the New York Times, which discusses some social science research starting to document some of the long-term consequences and lurking costs of mass incarceration.  Here are excerpts:

The chances of seeing a parent go to prison have never been greater, especially for poor black Americans, and new research is documenting the long-term harm to the children they leave behind.  Recent studies indicate that having an incarcerated parent doubles the chance that a child will be at least temporarily homeless and measurably increases the likelihood of physically aggressive behavior, social isolation, depression and problems in school — all portending dimmer prospects in adulthood.

“Parental imprisonment has emerged as a novel, and distinctly American, childhood risk that is concentrated among black children and children of low-education parents,” said Christopher Wildeman, a sociologist at the University of Michigan who is studying what some now call the “incarceration generation.”

Incarceration rates in the United States have multiplied over the last three decades, in part because of stiffer sentencing rules.  At any given moment, more than 1.5 million children have a parent, usually their father, in prison, according to federal data.  But many more are affected over the course of childhood, especially if they are black, new studies show.

Among those born in 1990, one in four black children, compared with one in 25 white children, had a father in prison by age 14.  Risk is concentrated among black children whose parents are high-school dropouts; half of those children had a father in prison, compared with one in 14 white children with dropout parents, according to a report by Dr. Wildeman recently published in the journal Demography.

For both blacks and whites, the chances of parental incarceration were far higher than they were for children born just 12 years earlier, in 1978.

Scholars agree that in some cases children may benefit from a parent’s forced removal, especially when a father is a sexual predator or violent at home.  But more often, the harm outweighs any benefits, studies have found.

If a parent’s imprisonment deprives a struggling family of earnings or child support, the practical consequences can be fairly clear-cut.  While poor urban children had a 3 percent chance of experiencing a period of homelessness over the previous year, those with an incarcerated parent had a 6 percent chance, one study found.

Quantifying other effects of parental incarceration, like aggressive behavior and depression, is more complex because many children of prisoners are already living in deprived and turbulent environments.  But researchers using newly available surveys that follow families over time are starting to home in on the impact.

Among 5-year-old urban boys, 49 percent of those who had a father incarcerated within the previous 30 months exhibited physically aggressive behaviors like hitting others or destroying objects, compared with 38 percent of those in otherwise similar circumstances who did not have a father imprisoned, Dr. Wildeman found.

While most attention has been placed on physical aggression, a study by Sara Wakefield, a sociologist following children in Chicago, found that having a parent imprisoned was a mental-health tipping point for some.  Thus, while 28 percent of the children in her study over all experienced feelings of social isolation, depression or anxiety at levels that would warrant clinical evaluation or treatment, about 35 percent of those who had an incarcerated parent did....

With financial woes now forcing many states to rethink the relentless expansion of prisons, “this intergenerational transfer of problems should be included as an additional cost of incarceration to society,” said Sarah S. McLanahan, a sociologist at Princeton University and director of a national survey of families that is providing data for many of the new studies.

Heather Mac Donald, a legal expert at the Manhattan Institute, a conservative research group, agreed that everything possible should be done to help the children of people who were incarcerated.  But Ms. Mac Donald said that it was hard to distinguish the effects of having a parent in prison from those of having a parent who is a criminal, and that any evaluation of tough sentencing policies, which she supports, had to weigh the benefits for the larger community.  “A large portion of fathers were imprisoned on violence or drug-trafficking charges,” she said.  “What would be the effects on other children in the neighborhood if those men are out there?”

July 5, 2009 in Scope of Imprisonment | Permalink | Comments (20) | TrackBack