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July 25, 2009

Prison reforms and cuts left uncertain in final California budget deal

Though the details seem murky, it appeals from this local article that California's budget deal, which was finalized late Friday, included some unspecified prison reforms and cuts.  Here are the opaque details:

Of the $25 billion in budget "solutions," $15.5 billion come by way of cuts, with schools ($6 billion) taking the biggest hit. The University of California and California State University systems will be slashed by $2.8 billion; MediCal services are facing a $1.3 billion hit; corrections departments are facing an unspecified $1.2 billion in cuts; and three major welfare programs — the welfare-to-work CalWORKs program, In-Home Supportive Services and the children's health insurance program — stand to lose a total of $878 million.

The rest — about $10 billion — is achieved through one-time raids on local government funding (for a total of $3.4 billion) and accounting maneuvers, such as deferring state employee paychecks by one day for a savings of $1.2 billion. Another $1.7 billion is saved by speeding up tax withholdings on individuals and businesses.

The proposal to allow offshore oil drilling off the Santa Barbara coast in exchange for $100 million in selling the rights, the final issue taken up, fell well short, on a 28-43 vote, a major victory for Democrats and environmentalists.

Earlier, cuts to higher education, college grants, health programs, welfare, in-home supportive services and state prisons barely cleared the required two-thirds threshold in the Senate, on a 27-13 vote, though it went through more easily in the Assembly, on a 57-22 vote.

Republicans had balked over the corrections cuts out of concern they would be seen as favoring a plan that calls for the early release of 27,000 prison inmates. The vote they took was technically for "unallocated" cuts, to be determined when lawmakers return next month after summer recess.

"Tonight we were essentially asked to close our eyes and vote, sight unseen, on funding cuts to public safety," said Sen. Tom Harman, R-Costa Mesa, who voted against the measure. "There were absolutely no details of how those spending reductions would be enacted. Without details, there is no guarantee the cuts would not ultimately result in the early release of 27,000 inmates."

Republicans have been assured that the GOP plan will be considered when lawmakers return from their summer session. But the plan will only require a majority vote, meaning Republican votes will not be needed — and likely will contain some elements of an early release.

Administration officials and Democrats insist that only 6,300 of the inmates would be released early from prison, but don't define it as such, saying the inmates would remain under DOC supervision on house arrest.

There is good coverage of these doings at California Corrections Crisis.

Some recent related posts:

July 25, 2009 in Prisons and prisoners | Permalink | Comments (0) | TrackBack

"U.S. adds to sex offender registry confusion"

The title of this post is the headline of this effective new piece from the St. Louis Post-Dispatch.  Here are excerpts:

Three rounds of legal battles in the Missouri Supreme Court still have not cleared confusion looming over the state's sex offender registry, as prior offenders are rushing to court to file new challenges. The suits are seeking to stop local officials from enforcing new federal guidelines, which were supposed to be in place across the country by this week.

The federal law creates a national registry of people convicted of sex offenses and expands the type of offenses for which a person must register. "It really has muddied the issue," said attorney Julie Brothers, who filed for a temporary restraining order this week in St. Louis County on behalf of an offender known as John Doe. "There are some major conflicts that are super confusing."

The confusion centers around about 4,300 offenders whom Missouri had exempted from its sex offender registry but who are required to register under the federal law, known as the Sex Offender Registration and Notification Act.

The conflict could cost Missouri hundreds of thousands of dollars of federal grant money if the state does not comply with the federal guidelines. U.S. Attorney General Eric Holder has given every state a one-year extension on the deadline to meet federal standards. But as states review the situation, some lawmakers and experts are concerned about the cost of complying....

The federal government can't mandate states to make the changes, experts said. So instead, Congress threatened to take away 10 percent of a federal law enforcement grant if states don't comply. Missouri would stand to loose an estimated $400,000; Illinois' total loss would be about $850,000, according to the Justice Policy Institute.

Lawmakers in Virginia asked experts to guess how much taxpayers would spend on the changes. The Virginia Department of Planning and Budget decided the first year would cost more than $12 million. Virginia only stood to lose about $400,000 in U.S. grant money each year, according to the department's documents.

July 25, 2009 in Sex Offender Sentencing | Permalink | Comments (4) | TrackBack

Noticing the functional death of the death penalty in Pennsylvania

This local article, headlined "Natural causes biggest threat on Pa. death row," spotlights the reality the the death penalty now essentially exists only in theory and not in practice in Pennsylvania. Here are some of the details:

In the [last] decade, Pennsylvania has executed no one. Its death row is the fourth-largest in the nation, yet the 218 men and five women are far more likely to die of natural causes than injected chemicals, gas, electricity or bullets.

Since the commonwealth reinstated the death penalty in 1978, three inmates have been executed; all had dropped their appeals. At least seven times that number have passed away, most of natural causes such as cancer or heart failure, while awaiting execution, according to an informal Corrections Department tally.

To find a Pennsylvania inmate unwillingly put to death, you have to go back almost half a century to the last use of the electric chair. "I think it is indicative of a split , people want the death penalty but don't want a lot of executions," said Richard Dieter of the Washington-based Death Penalty Information Center....

Duquesne University law professor Bruce Ledewitz, a former secretary for the National Coalition to Abolish the Death Penalty, says that while polls show that the public backs the death penalty in Pennsylvania, the support appears less strong than in other states and the issue has not been made a political priority. "For years, I used to tell people 'Just wait, the floodgates will open and we'll have a ton of executions,'" Ledewitz said. "I no longer say that anymore, because for some reason it's not happening. ... I don't see any evidence that it will."

July 25, 2009 in Death Penalty Reforms | Permalink | Comments (8) | TrackBack

July 24, 2009

"Momentum Builds to Equalize Cocaine Penalties"

The title of this post is the headline of this article in today's Washington Post.  Here is how it starts:

After two decades of criticism over cocaine sentences that disproportionately punish blacks, momentum is building in Congress and in the Obama administration for a legislative fix, representing a fundamental shift in politics and attitude, even among key GOP lawmakers.

For the first time after multiple attempts, a House subcommittee this week approved a bill to equalize criminal penalties for people caught with crack and powder cocaine.  The bill would also eliminate five-year mandatory minimum prison terms for offenders convicted of possessing rock cocaine without an intent to sell it.

The subcommittee vote came as a bipartisan group of lawmakers on the Senate Judiciary Committee is meeting to craft a similar proposal, which could be unveiled as early as next week, according to two congressional sources familiar with the effort.

July 24, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (2) | TrackBack

Should we use this forum to discuss the Gates incident and Prez Obama's response

I fear what might happen if we open up this forum to a general discussion of the arrest of Harvard prof Henry Louis Gates and President Obama's discussion of the event at his Wednesday press conference. And, of course, none of the formal aspects of the Gates incident and Obama's response has anything to do directly with sentencing law and policy.

Nevertheless, race and class are huge aspects of sentencing law and policy, and the lead story this morning on Politico is this piece, headlined "President Obama steps on third rail of race."   Thus, I figured it might be worth seeing what SL&P readers might want to say about the topic.  Let's all try to keep it civil, folks.

UPDATE:  My apologies for the fact that typepad seems to eat any comment after 25.  Sorry about the snafu, though perhaps it is just as well that this thread come to an end.

July 24, 2009 in Race, Class, and Gender | Permalink | Comments (31) | TrackBack

Drunk driver given the death penalty in China

My students get tired of hearing me say that if America was really committed to the deterrence theory of the death penalty, some states would consider the sentence of death for drunk driving.  But, as this news report highlights, the idea of using the death penalty for the crime of drunk driving is not just a hypothetical in China:

Sun Weiming, a company executive in Chengdu, capital of Sichuan Province, drove his Buick car into four sedans traveling in the opposite direction on December 14. Four people were killed and one was seriously injured in the crash. Investigations revealed Sun has been driving his car without a license since May 2008.

Doctors found 135.8 milligrams of alcohol in Sun’s blood. The government considers anyone with 80 milligrams of alcohol per 100 milligrams of blood drunk.

Police said Sun's car was traveling at a speed 120 percent higher than the limit on that road. Sun first scraped a car and, in a bid to escape, drove his vehicle on to the other side of the road and crashed into four oncoming vehicles.

The Chengdu Intermediate People’s Court sentenced Chen to death “for an offense against public safety”, newssc.net, the official news website of Sichuan Province, reported. Sun said he would appeal against the verdict.

Some related posts:

July 24, 2009 in Sentencing around the world | Permalink | Comments (12) | TrackBack

"The Prosecutor as Regulatory Agency"

The title of this post is the title of this new piece by Professor Rachel Barkow that is available here via SSRN.  Here is the abstract:

The simple account of America’s system of separated powers has legislators responsible for making laws, the executive branch (and prosecutors within it) charged with enforcing the laws, and judges with the power to adjudicate any disputes by declaring what the law commands. Two aspects of our modern government that have disrupted this paradigm – judicial and agency policymaking – have become scholarly obsessions. But there is another, equally strong challenge to the traditional separation-of-powers framework that has received far less attention: prosecutors who regulate.

The constitutionally limited role of the prosecutor is to enforce the policies laid down in laws enacted by the legislature. Whether this was ever true, it is certainly not the case today that prosecutors are merely enforcing pre-established rules. Armed with expansive criminal codes and broadly worded statutes, plus the ability to threaten harsh and mandatory sentences, prosecutors have so much leverage in negotiations with defendants that they have, for all practical purposes, taken on the roles of adjudicator and legislator as well.

But prosecutorial regulatory power has gone further than the incidental power to regulate that comes with enforcement discretion. In the area of corporate crime in particular, prosecutors have gone beyond law interpretation and the pursuit of punishment for what they believe to be past violations of existing criminal laws. In this context, prosecutorial goals are sometimes more grand, with prosecutors seeking to reform the way companies do business going forward. They have increasingly reached agreements with companies that allow the companies to avoid indictments so long as they meet the prosecutors’ regulatory terms. The agreements go by different names. In the federal system, they consist of non-prosecution agreements (NPAs) and deferred prosecution agreements (DPAs). In some states, they are known as settlement agreements. When the agreements require companies simply to obey the law or pay for prior bad acts, they are not particularly noteworthy from a separation of powers perspective because they are incidental to executive power. But in many of these agreements, prosecutors impose affirmative obligations on companies to change personnel, revamp their business practices, and adopt new models of corporate governance. These dictates are often sweeping and some prosecutors have imposed them on industries, not just isolated companies. These prosecutorial commands have been imposed without legislative guidance, much less relatively clear rules or intelligible principles.

Judges and regulatory agencies have been closely scrutinized to determine whether they have the accountability, institutional competence, and procedural reliability to regulate.  This Chapter considers prosecutor-imposed regulations using the same metrics.

July 24, 2009 in Who Sentences? | Permalink | Comments (0) | TrackBack

July 23, 2009

President Obama makes first appointment to US Sentencing Commission

As this official press release from the White House, President Obama has made his first nomination to U.S. Sentencing Commission. Here are all the details from the press release:

President Obama today nominated Ketanji Brown Jackson to be a member of the U.S. Sentencing Commission.

"Ms. Jackson has established herself as both a top-flight attorney and a dedicated public servant," President Obama said. "I am grateful for her willingness to serve and confident that she will be an unwavering voice for justice and fairness on the Sentencing Commission."

Ketanji Brown Jackson, Nominee for Member of U.S. Sentencing Commission: Ketanji Brown Jackson, 38, is Of Counsel at Morrison & Foerster, LLP in Washington, D.C., where she has worked since 2007. From 2005 to 2007, she was an Assistant Federal Public Defender in the District of Columbia. From 2003 to 2005, Ms. Jackson served as Assistant Special Counsel to the U.S. Sentencing Commission. From 1998 to 1999 and 2000 to 2003, Ms. Jackson was in private practice. Ms. Jackson served as law clerk to the Honorable Patti B. Saris (U.S. District Court of Massachusetts), the Honorable Bruce M. Selya (U.S. Court of Appeals for the First Circuit), and the Honorable Stephen G. Breyer (U.S. Supreme Court). Ms. Jackson graduated from Harvard College (1992) and Harvard Law School (1996).

I had heard some buzzing about this nomination being in the works, and I am glad to now see it is a reality.  I hope that the Senate confirmation process moves swiftly so that I can soon refer to Ketanji Brown Jackson as Commissioner Jackson.

July 23, 2009 in Who Sentences? | Permalink | Comments (8) | TrackBack

Big political corruption busts in New Jersey . . . thanks to a cooperator

The Wall Street Journal provides this extended account, which is headlined "Dozens Arrested in New Jersey Corruption Probe," of a huge political corruption story breaking today in New Jersey.  Here is how the piece starts:

Federal agents swept into New Jersey towns across several counties Thursday morning, charging 44 people, including mayors and rabbis, in a federal investigation into public corruption and a high-volume, international money-laundering conspiracy.

The arrests in the corruption probe included Peter Cammarano III, the newly elected Democratic mayor of Hoboken; Dennis Elwell, mayor of Secaucus, also a Democrat; state Assemblyman Daniel Van Pelt, a Republican; and Democrat Leona Beldini, the deputy mayor of Jersey City. Those arrested were expected to be arraigned in court Thursday afternoon.

The key to the investigation was an Orthodox Jewish real-estate developer, according to a person familiar with the matter.  Solomon Dwek was arrested on bank-fraud charges in 2006 and was forced to seek bankruptcy protection for himself and his companies, which owned about 300 residential and commercial properties. Mr. Dwek, 36 years old, a religious-school head and philanthropist from Ocean Township, was charged with defrauding PNC Bank out of $25 million. Mr. Dwek remained free on a $10 million bond.  A lawyer for Mr. Dwek couldn't be reached for comment.

To ensnare most of the defendants, the Federal Bureau of Investigation used Mr. Dwek to attempt to bribe numerous public officials in New Jersey, including Hoboken and Jersey City, according to a person familiar with the matter. The probe roped in several other real-estate developers who also wanted to bribe officials. The criminal complaints unsealed Thursday referenced an unnamed "cooperating witness" who represented himself as a real-estate developer seeking to pay bribes. A person familiar with the matter said Mr. Dwek is the witness.

This may not seem like a sentencing story yet, but it already is in various ways.  First, the threat of a long prison term that Solomon Dwek was likely facing on bank-fraud charges in 2006 surely played a role in his decision to become a "cooperating witness."  Relatedly, the "44 people, including mayors and rabbis" who were arrested today will surely be told ASAP that the best way they can reduce their sentencing exposure is to be as cooperative as Solomon Dwek.

July 23, 2009 in White-collar sentencing | Permalink | Comments (1) | TrackBack

"'Bishop' receives two-year sentence for making kids live with corpse"

The title of this post is headline of this local article from Wisconsin that seems tailor made for blog debate.  Here are the details:

A former Necedah church leader will spend the next two years in prison for keeping a decomposing corpse in the bathroom of a home where two children lived.  Alan A. Bushey, also known as Bishop John Peter of the Order of the Divine Will Church, was given three years of extended supervision to follow his prison sentence for being a party to the crime of hiding a corpse.

During the sentencing hearing Wednesday, Juneau County Circuit Court Judge John Roemer Jr. also ordered Bushey to have no contact with his co-defendant, Tammy D. Lewis, or her two children and to undergo domestic abuse counseling and not act as a member of the clergy.

A 12-year-old boy and a 15-year-old girl were forced to live with the decaying body of Magdeline Alvina Middlesworth, 90, in Middlesworth's Necedah home for 65 days.  On May 7, 2008, the body was discovered by a Juneau County deputy after the Sheriff's Department received a call from one of Middlesworth's concerned relatives, Juneau County District Attorney Scott Southworth said.  Bushey and Lewis were paying their bills and the bills of the Divine Will Church with Middlesworth's Social Security and annuity checks, which continued being sent after her death.

In a written statement, the 12-year-old boy, now 13, asked the judge to sentence Bushey to a minimum of four years in prison, one year for each year he and his sister spent in Middlesworth's home cut off from the outside world. Southworth said the recommendation was appropriate.

Southworth said he visited Middlesworth's home a short time after the body was discovered and that he had to wear a chemical suit to avoid contamination. "I have personal experience with war and I have seen death; I have never seen anything like that in my life," Southworth said.

According to the criminal complaint, Bushey told Lewis and her two children that if they prayed and believed, Middlesworth would come back to life. The children were punished and beaten with a wooden stick when the body began to decompose.

Three of Bushey's supporters, including the children's grandmother, Patricia Lewis, spoke at the sentencing.  She said Bushey helped the family and everyone was happy. Bushey established discipline for the children, Lewis said. "I don't think they were harmed by the conditions with Alvina (Middlesworth) in the house after she passed away," she said. "I believe that (Bushey) believed Alvina (Middlesworth) would come back to life. I think he made a mistake; it wasn't murder."

Beyond the opportunity for gallows humor in response to this sentencing story, I wonder what folks think of the sentencing requirement that the defendant "not act as a member of the clergy."  That sentencing term strikes me as potentially raising some First Amendment problems, though I doubt that the issue will get litigated in this bizarre case.

July 23, 2009 in Criminal Sentences Alternatives | Permalink | Comments (7) | TrackBack

Another big federal fraud sentencing dealing with Madoff echoes

This local story out of Virginia, which is headlined "Okun’s lawyers say life sentence not warranted," provide another example of the echo effect of Bernie Madoff's severe fraud sentence. Here are the details:

Authorities want a 400-year sentence for Edward Hugh Okun — or one that otherwise assures he spends the rest of his life in prison — as the mastermind of a $126 million fraud.

In papers filed in U.S. District Court yesterday, prosecutors said the former Miami businessman used nearly $40 million in client money as a "personal piggy bank" to fund a divorce settlement and buy a jet, a helicopter, homes and jewelry for his new wife. "Unlike other recent high-profile fraud prosecutions, Okun's victims never asked [Okun] to invest and risk their money," the U.S. attorney's office argues.  Instead, the victims entrusted their money to Okun to be held in bank and escrow accounts. "Okun's criminal acts drove many individuals to economic collapse or near collapse, and caused especially significant noneconomic, emotional damage on many of his victims," the 13-page sentencing memorandum states.

Okun's lawyers, in their own memorandum filed yesterday, said a life sentence is not warranted under federal sentencing guidelines and that a 10- to 15-year sentence would be more appropriate. Okun, 58, is to be sentenced in a two-day hearing beginning Aug. 4 before U.S. District Judge Robert E. Payne in Richmond. Accused of masterminding the fraud that victimized at least 232 people across the country, he was convicted of all 23 counts in a jury trial here in March....

Okun's lawyers yesterday presented a study of cases from 1998 to 2008 — with losses of $100 million to $400 million — that shows the average sentence was 94.6 months.  Of those cases, 14 defendants faced guideline sentences of life, but none was sentenced to life.

They noted that Bernard Madoff received a maximum 150-year sentence last month, in a much larger and longer-running Ponzi scheme that took in $65 billion and victimized thousands. They also said that while the government sought 145 years in prison for lawyer Marc Dreier, nicknamed the "Mini-Madoff," in a $700 million fraud, he was sentenced this month to 20 years by a judge who said Dreier's crimes paled in comparison with Madoff's.  "Not only is Okun no Madoff, he is no Dreier," Okun's lawyers argue. They said the maximum guideline sentence in Okun's case is 20 years, "which is essentially a life sentence."

Jayne W. Barnard, a law professor at the College of William and Mary, said it is no surprise Madoff is on the minds of Okun and his lawyers.  "Every fraud defendant right now is very uncomfortable because the 150-year sentence is out there. And every fraud defendant in the country right now is trying to distinguish what they did from what Bernie Madoff did," she said.

Some recent related posts:

July 23, 2009 in White-collar sentencing | Permalink | Comments (1) | TrackBack

Lots of effective coverage of new lifer report from The Sentencing Project

I am pleased to see that the important new report released by The Sentencing Project yesterday, No Exit: The Expanding Use of Life Sentences in America, is garnering significant attention from both the national media and local outlets. Here is a sampling of some of the coverage:

July 23, 2009 in Scope of Imprisonment | Permalink | Comments (7) | TrackBack

July 22, 2009

House subcomittee takes first step to eliminate crack/powder federal sentencing disparity

Thanks to this post from TalkLeft and this press release from FAMM, I see that there has finally been some real, actual, tangible legislative movement on eliminating crack/powder federal sentencing disparity. Here are details from the FAMM press release:

Buoyed by Department of Justice support for eliminating the 100:1 sentencing disparity between crack and powder cocaine, and outraged by the high cost of incarcerating low-level drug offenders for excessively long prison terms, the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security unanimously passed H.R. 3245, the Fairness in Cocaine Sentencing Act of 2009, on July 22.

The bill would remove references to "cocaine base" from the U.S. Code, effectively treating all cocaine, including crack, the same for sentencing purposes. Original cosponsors of the bill include all Democratic members of the subcommittee and the sponsors of all other Democratic bills that address the cocaine sentencing disparity.

July 22, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (6) | TrackBack

Still more potent talk from AG Holder about federal sentencing reform

Earlier today, Attorney General Eric Holder delivered these remarks at the National Black Prosecutors Association’s Profiles in Courage Luncheon.  Here are portions of his remarks focused on how he handled the botched prosecution of former Senator Ted Stevens and also his commitment to federal sentencing reform (with emphasis in the original):

One of my earliest and most highly publicized acts during my tenure as Attorney General was my decision to dismiss the prosecution of former Senator Ted Stevens.  A review of the facts led me to conclude that the defense team had not been provided with all the required Brady material. Dismissal of the case was my only recourse.  Our adversarial system for criminal trials can only result in justice if the discovery process is conducted by the government fairly, ethically, and according to the rule of law.

The Department of Justice has always been considered above reproach or suspicion in this regard. Regrettably, however, the Stevens case has threatened that trust. That is why I have now ordered a full review of how the Department complies with its discovery obligations.  We will correct any errors and we will see to it, once again, that justice is our primary goal.  That is the hallmark of prosecutors such as you -- good prosecutors.  When we are wrong we will admit our errors.  When we see an affront to justice, we will rectify the problem.  And rather than worry about politics, when we learn of criminal misconduct, we will follow the facts and the law, wherever they may lead us.

I have launched a working group within the Justice Department to review sentencing and corrections policy.  Many of the issues we are looking at, including the structure of federal sentencing, the role of mandatory minimums, the Department’s own charging and sentencing policies, the elimination of the sentencing disparities between crack and powder cocaine, and other unwarranted disparities in federal sentencing, have been the source of controversy in our nation for many years.  But controversy should not breed inaction.  As prosecutors, we need to do what is right, no matter what challenges confront us.

The 100-to-1 crack-powder sentencing ratio is a perfect example. Although some may seek to impose the "soft-on-crime" label on anyone who speaks the truth about this issue, we all know that this egregious difference in punishment is simply wrong.  I have seen first-hand the effect that disparities in drug sentences have had on our communities.  In my career as a prosecutor and as a judge, I saw too often the cost borne by the community when promising, capable young people sacrificed years of their futures for non-violent offenses.  Let me be clear: the Department of Justice will never back down from its duty to protect our citizens and our neighborhoods from drugs, or from the violence that all-too-often accompanies the drug trade. But we must discharge this duty in a way that protects our communities as well as the public’s confidence in the justice system.  Our goal is quite simple: to ensure that our sentencing system is tough, predictable and fair.

July 22, 2009 in Who Sentences? | Permalink | Comments (13) | TrackBack

"State police chiefs' association backs prison plan in budget"

The title of this post is the headline of this new Los Angeles Times article discussing the latest debates over the prison reform provisions in the new California budget plan.  Here is how the piece starts:

A day after Republican lawmakers threatened to back out of the state budget deal over a provision to cut the prison population, California police chiefs this morning threw their support behind the plan.  The endorsement by the California Police Chiefs' Assn. may ease nerves of elected officials from both parties about the plan to save $1.2 billion, which came under fire when details were revealed Tuesday....

Pasadena Police Chief Bernard Melekian, president of the association, said today that the plan to reduce the inmate population by 27,000, partly by targeting specific offenders who behave well, are sick or have the least time to serve, takes "huge steps in the right direction." He said the plan was far better than an unvarnished early release of inmates that his group had feared would be approved by state leaders.

His eight-member board, which represents 338 chiefs statewide, voted unanimously to support it."We think that we've made a lot of progress," Melekian said. "We are very pleased about that, and we anticipate working very closely with them to implement this."

July 22, 2009 in Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Potent new report on life sentences from The Sentencing Project

I just received this e-mail telling me about an important new report just released by The Sentencing Project:

A new report released by The Sentencing Project finds a record 140,610 individuals are now serving life sentences in state and federal prisons, 6,807 of whom were juveniles at the time of the crime. In addition, 29% of persons serving a life sentence (41,095) have no possibility of parole, and 1,755 were juveniles at the time of the crime.

No Exit: The Expanding Use of Life Sentences in America represents the first nationwide collection of life sentence data documenting race, ethnicity and gender. The report's findings reveal overwhelming racial and ethnic disparities in the allocation of life sentences: 66% of all persons sentenced to life are non-white, and 77% of juveniles serving life sentences are non-white. Other findings in the report include:

  • In five states — Alabama, California, Massachusetts, Nevada, and New York -at least 1 in 6 prisoners is serving a life sentence.
  • Five states — California, Florida, Louisiana, Michigan, and Pennsylvania — each have more than 3,000 people serving life without parole.  Pennsylvania leads the nation with 345 juveniles serving sentences of life without parole.
  • In six states — Illinois, Iowa, Louisiana, Maine, Pennsylvania, and South Dakota — and the federal government, all life sentences are imposed without the possibility of parole.
  • The dramatic growth in life sentences is not primarily a result of higher crime rates, but of policy changes that have imposed harsher punishments and restricted parole consideration.

The authors of the report, Ashley Nellis, Ph.D., research analyst and Ryan S. King, policy analyst of The Sentencing Project, state that persons serving life sentences "include those who present a serious threat to public safety, but also include those for whom the length of sentence is questionable."  One such case documented is that of Ali Foroutan, currently serving a sentence of 25 years to life for possession of 0.03 grams of methamphetamine under California's "three strikes" law.

The Sentencing Project calls for the elimination of sentences of life without parole, and restoring discretion to parole boards to determine suitability for release.  The report also recommends that individuals serving parole-eligible life sentences be properly prepared for reentry back into the community.

July 22, 2009 in Scope of Imprisonment | Permalink | Comments (3) | TrackBack

Debate heating up over recommended capital clemency in Ohio

As detailed in this local article, which is headlined "Getsy juror outraged: Upset by parole board decision," there is a brewing debate in Ohio over the state parole board's recommendation of clemency for a killer scheduled to be executed in August.  Here are details:

After he read about it in the newspaper, Jerry Heck said he couldn't keep from driving to the Trumbull County Courthouse on Tuesday from his home in Bristol. ''I was appalled,'' he said of the Ohio Parole Board decision to recommend clemency for death row inmate Jason Getsy.

Heck, 54, is especially familiar with the local murder case since he was one of 12 jurors who heard the facts during his 1996 trial in which Getsy was found guilty. Heck was also among the jurors who recommended Getsy be sentenced to death.

Heck, a mechanic at Denman Tire, drove into town just to sign a petition being circulated by representatives of the Trumbull County Prosecutor's Office that asks Gov. Ted Strickland to turn down the parole board recommendation. ''The governor should let the jury do its job. We struggled over that case. There was crying and hugging. I remember,'' Heck said. ''I feel strongly about this.''... ''Just because other people weren't given the death penalty isn't enough. The other young men took themselves out of the crime scene. None of them pulled the trigger. His (Getsy's) only remorse was that he got caught,'' Heck said....

Getsy was convicted of the 1995 aggravated murder in the slaying of Ann Serafino, 66, of Hubbard, and of the attempted murder of her son, Chuck. Prosecutors said John Santine offered Getsy and two others $5,000 to kill Charles Serafino, a business rival, and any witnesses because of a dispute over Serafino's landscaping business. Ann Serafino was killed because she was at home when the gunmen attacked, authorities said....

Trumbull County Prosecutor Dennis Watkins, who penned his own protest letter to Gov. Ted Strickland within an hour after hearing to the decision Friday, called the decision a dangerous precedent that could lead to other pared-down sentences or early parole in noncapital murder cases.

Some recent related posts:

July 22, 2009 in Death Penalty Reforms | Permalink | Comments (3) | TrackBack

Should President Obama practice ageism when making judicial nominations?

Thanks to How Appealing, I noticed this recent essay at The New Republic, headlined "Old World: Why isn't Obama appointing young judges to the circuit courts?". Here are snippets:

Attention was understandably focused on Sonia Sotomayor this week, as her confirmation hearings unfolded. But what about Obama's other judicial nominees?  The president has so far nominated five judges to federal circuit courts. On average, these nominees are 55 years old, more than a decade older than Sotomayor was when she was nominated to the Second Circuit. (She was 43.) For years, Republicans have been nominating sharp young conservatives to the lower federal courts. Now, rather than looking for young legal talent of its own, a Democratic administration seems to be favoring older nominees. In our view, this is a major mistake....

And so Obama's first five circuit-court nominations raise serious concerns.  Their average age of 55 (they are 51, 52, 54, 58, and 60) is considerably higher than the average age of nominees under recent past presidents.  According to regional circuit-court data compiled from the Federal Judicial Center, Reagan's nominees were, on average, 50 years old; George H.W. Bush's averaged 49; and George W. Bush's averaged 50.  Even Clinton's nominees were under 52 on average.

Moreover, roughly a quarter of the circuit-court nominees put forward by the past three Republican presidents — and 15 percent of those chosen by Clinton — were below the age of 45.  Reagan nominated some of the brightest young legal minds in the country, including Alex Kozinski (then 34), Frank Easterbrook (36), Kenneth Starr (37), J. Harvie Wilkinson (39), Doug Ginsburg (40), and Richard Posner (42).  The first President Bush nominated Michael Luttig (36), Samuel Alito (39), and Clarence Thomas (41).  And George W. Bush continued this practice, nominating Neil Gorsuch (38), Brett Kavanaugh (41), Raymond Kethledge (41), Jeffrey Sutton (42), and William Pryor (42), among others.  Although we realize Obama is early in his presidency, so far noneof his circuit court nominees are in their 40s, let alone their 30s.

I suspect that President Obama's first few circuit nominees are skewing older because he wanted to make "safe" early selections.  Indeed, I am most troubled by how "safe" (and slow) Obama's circuit appointees have been so far.  All five are current district judges and many have a history as federal prosecutors.  In my view, the federal circuit bench really needs a jolt through appointees who will bring bold and fresh perspectives to federal jurisprudence, whether those perspectives are within older or younger bodies. 

Some related old and new posts on judicial appointments:

July 22, 2009 in Who Sentences? | Permalink | Comments (8) | TrackBack

Economic necessity finally forcing long-needed reform in California

As detailed in this Los Angeles Times article, which is headlined "Opposition to state budget deal mounts," the budget deal worked out in California to deal with a huge deficit includes huge cuts to the prison population.  Here are the details and the brewing debate:

[I]t was the effect that the deal would have on prisons that seemed to offer the most potential for trouble. Neither the governor's office nor the Legislature had publicly released details of the prison portion of the agreement. When they were revealed, Blakeslee (R-San Luis Obispo) insisted that he had not agreed to them....

The governor's corrections chief, Matt Cate, said the administration was doing a "full-court press" to win approval for the plan. "If we don't achieve these measured, thoughtful, I think smart-on-crime proposals, then we really are in a position where we have nothing left to do but talk about early release," Cate said.

If it passes, the prison plan would be a prime example of how the budget crisis could force California to make changes that have long been talked about, but have proven politically difficult. It would amount to a significant reversal of a decades-long pattern of longer sentences and rising prison populations. Steinberg told reporters that the proposal would target the "revolving door" that state prisons have become for lower-level offenders.

The plan resembles recommendations from experts on reducing California's prison overcrowding, which is the focus of a federal lawsuit in which judges have been considering whether to order a mass inmate release. "We have not done a very good job in California of distinguishing between people who are violent and who belong in prison for a long time, and those who could succeed on the outside with supervision, who have not demonstrated any history of violence," Steinberg said.

The prison plan would give state corrections officials authority to allow any inmate with 12 months or less on his or her sentence to serve the remaining time on home detention with electronic monitoring.

Inmates who are over 60 or medically incapacitated could also get home detention or be confined in a hospital. In addition, inmates who achieve milestones in rehabilitative programs, substance abuse treatment, vocational training or education could receive up to six weeks off their prison terms.

The plan includes Schwarzenegger's proposal to release and deport illegal immigrant felons, and a scaled-down version of another proposal of his to change some felonies to misdemeanors so inmates could be held in county jails instead of prisons. Sentences for property crimes also would be scaled back.

A "Parole Re-Entry Accountability Program" would reduce the state parole population by 46,000 -- more than a third of those now under supervision -- depending on their crimes and behavior. Those former prisoners convicted of the least serious crimes would not be subject to parole revocation that could return them to prison.

The budget plan also would create a sentencing commission to reexamine the state penal code, which would not save money immediately but would advance plans under discussion by lawmakers for years. The commission would have three years to establish new sentencing guidelines.

July 22, 2009 in Scope of Imprisonment | Permalink | Comments (1) | TrackBack

July 21, 2009

Top-side briefs in Graham and Sullivan, the two SCOTUS juve LWOP cases

Thanks to the folks at the ABA who collect Supreme Court briefs here, we can all now read the top-side merits briefs filed late last week in the two juve LWOP cases, Graham and Sullivan, to be heard next term by Supreme Court (basics here and here).  As I have explained in prior posts (some of which are linked below), I think Graham and Sullivan are the most important Eighth Amendment cases to be heard by the Supreme Court in a long time (and they are also among the most interesting constitutional cases on the current SCOTUS docket). 

The top-side merits brief in Graham can be access at this link.  The top-side merits brief in Sullivan can be accessed at this link.  Both are very lengthy because of long appendices.

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

July 21, 2009 in Graham and Sullivan Eighth Amendment cases | Permalink | Comments (0) | TrackBack

US Sentencing Commission's "Overview of Statutory Mandatory Minimum Sentencing"

As previously noted here, the House Judiciary's Subcommittee on Crime, Terrorism, and Homeland Security last week held a hearing on "Mandatory Minimums and Unintended Consequences."  Now I just discovered that the US Sentencing Commission's website has posted this new lengthy document which is titled "Overview of Statutory Mandatory Minimum Sentencing."  Here is how the USSC describes the document on its website's front-page:

On July 10, 2009, the Commission provided a statistical overview of statutory mandatory minimum sentencing using fiscal year 2008 data to the House Judiciary Committee's Subcommittee on Crime, Terrorism and Homeland Security in light of its July 14, 2009 hearing entitled "Mandatory Minimums and Unintended Consequences."

Here is how the document itself starts:

The Commission has identified at least 171 individual mandatory minimum provisions currently in the federal criminal statutes.  In the Commission’s fiscal year 2008 datafile, there were 31,239 counts of conviction that carried a mandatory minimum term of imprisonment.  Because an offender may be sentenced for multiple counts of conviction that carry mandatory minimum penalties, these 31,239 counts of conviction exceed the total number of offenders (21,023 offenders, as reported below) who were convicted of statutes carrying such penalties.

Of these 31,239 counts of conviction, the overwhelming majority (90.7%) were for drug offenses (24,789 counts of conviction, or 79.4%) and firearms offenses (3,527 counts of conviction, or 11.3%).  Most of the 171 mandatory minimum provisions rarely, if ever, were used in fiscal year 2008, with 68 such provisions not used at all.

Some related recent posts:

July 21, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (0) | TrackBack

"'Gambling Granny' sentenced to 14 months of house arrest"

The title of this post is the headline of this local article out of Florida.  Here are the details:

A Broward County judge this morning sentenced a grandmother to 14 months of house arrest for leaving her two grandchildren unattended in a car while she gambled at a Hallandale Beach casino, a prosecutor said.

Jeanne Shahan, 54, of North Miami, pleaded guilty to felony child abuse, misdemeanor contributing to the delinquency of a minor, and misdemeanor leaving a child unattended in a vehicle, said Assistant State Attorney Mary Ann Braun.

On Aug. 19, 2008, Shahan left her grandchildren -- a 2-year-old girl and a 14-year-old boy -- unattended in a vehicle for more than an hour while she played the slots at Mardi Gras Gaming, 831 N. Federal Highway, police said.  The car's air-conditioning was off, but the windows were down.  "She's a very good lady who just used poor judgment, and she's very sorry about it," Shahan's defense attorney, Chris Narducci, said today.

Circuit Judge Jeffrey Levenson also ordered three years probation upon completion of house arrest, Braun said.  Levenson also prohibited Shahan from entering any gaming institutions.

Though I do not have too much sympathy for the "gambling granny," a full 14-months of house arrest seems like a fairly stiff sentence in the absence of any evidence that the kids were hurt.  (Though I suspect my judgment here is skewed by the fact that, in the same region, Donte Stallworth only got a slightly tougher sentence for a DUI killing).

July 21, 2009 in Offense Characteristics | Permalink | Comments (7) | TrackBack

Ohio — aka the northern Texas — executes again

As detailed in this AP article, Ohio executed another multiple murderer this morning.  This was Ohio's third execution in 2009 and its twenty-third execution since 2004.  With respect to the death penalty, I think it is fair and appropriate to now call Ohio the Texas of the north: except for a few states in the south, Ohio has had executed many, many more killers than any other state in recent years.

To date, I have seen relatively few academics or leading public policy groups or even hard-core abolitionists making a big deal about the fact that Ohio has become of leading modern death penalty state.  My cynical explanation would be that Ohio's experience with the death penalty does not easily or effectively fit into certain anti-death-penalty narratives often stressed by academics and public policy groups and abolitionists, Ohio's recent experiences with capital punishment is often ignored rather than engaged.

Relatedly, though the economic costs of the death penalty were getting a lo of attention earlier this year, I am not aware of any discussion within Ohio to lay off the death penalty during the state's recent pitched battle over a huge budget deficit.  Though states still seem to be tightening their belts, this summer I am noticing less and less serious talk lately about the economics of capital punishment.

Some recent related posts:

UPDATE:  This AP story on this execution notes it has the honor of being "the 1,000th lethal injection in the U.S. since the death penalty was reinstated in 1976."  This round number, in turn, has apparently prompted an internation response:

According to the nonprofit Death Penalty Information Center in Washington, D.C., Keene's was the 1,171st execution — and the 1,000th by lethal injection — since the U.S. reinstated the death penalty in 1976.

The European Union presidency, currently held by Sweden, released a statement noting the number and calling on the U.S. to halt executions, pending the abolition of the death penalty. "The European Union is opposed to the use of capital punishment in all cases and under all circumstances," the statement said. "We believe that the abolition of the death penalty is essential to protect human dignity, and to the progressive development of human rights."

July 21, 2009 in Death Penalty Reforms | Permalink | Comments (9) | TrackBack

Sixth Circuit amends its federal guidelines masturbation jurisprudence

In this prior post from a few months ago, I noted that the Sixth Circuit had to resolve a guideline question that forced it to break new ground in federal guidelines masturbation jurisprudence. But today brings a new amended Sixth Circuit ruling in US v. Shafer, No. 07-2574 (6th Cir. July 21, 2009) (available here), which starts this way:

Defendant-Appellant Robert Shafer (“Shafer”) appeals his sentence of 360 months of imprisonment resulting from his guilty plea to one count of enticing a minor to engage in sexually explicit conduct for the purposes of producing visual depictions of such conduct and which were produced using material which had been shipped and transported in interstate and foreign commerce in violation of 18 U.S.C. § 2251(a).  Specifically, Shafer admitted to “caus[ing] an eleven year-old boy to undress and engage in sexually explicit conduct, including, but not limited to, masturbation and the lascivious exhibition of his genitals and pubic area.  [Shafer] produced seven (7) digital images of the sexually explicit conduct using materials which had been shipped and transported in interstate and foreign commerce, including, but not limited to, a Sony Mavica brand digital camera that was manufactured outside of the State of Michigan.” Joint Appendix (“J.A.”) at 14-15 (Indictment at 1-2).  Shafer’s sole argument on appeal is that the district court clearly erred at sentencing when it imposed a two-level enhancement pursuant to the U. S. SENTENCING GUIDELINES MANUAL (“U.S.S.G.”) § 2G2.1(b)(2)(A) (2006).  After we issued an opinion in this case, the Government presented in a petition for rehearing and rehearing en banc a new argument that we did not have occasion to consider in our initial review.  In light of this new argument, we provided Shafer an opportunity to respond to the Government’s position, and we conducted further research regarding the legislative purpose behind the statute at issue in this case as expressed in the statute’s legislative history.  Having thoroughly reviewed these additional materials, we now AFFIRM Shafer’s sentence.  We withdraw our prior opinion and issue this amended opinion.

July 21, 2009 in Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

"A Parable of Politicized Prosecution"

The title of this post is the headline of this Washington Post column by Jon Entine, who is the author of the new book, "No Crime But Prejudice: Fischer Homes, the Immigration Fiasco, and Extra-Judicial Prosecution" (which was noted in this prior post).  Here are snippets that focus on the power of prosecutors:

[T]he justice system wields enormous power, which often depends on extracting plea deals, sometimes from the innocent and often from supposedly deep-pocketed businesses....

We rarely think about the sheer magnitude of power in the hands of government attorneys. They have a fundamental responsibility not to win cases but to ensure justice. It is as much their duty to refrain from improper methods to produce a wrongful conviction as it is to use every legitimate means possible to bring about a just one.  But that's not always what happens.  Often, government prosecutors have no intention of going to trial. They have perfected a more powerful tactic: exploiting the threat of business losses and manipulating the media to force capitulation.

As in the Fischer case, they use threats of guaranteed jail time under the sentencing guidelines to try to squeeze out guilty pleas.  The stakes of a formal indictment (much less a conviction) are too high for most people or corporations to risk. Defendants plead guilty or are found guilty in more than 85 percent of the criminal cases handled by the U.S. attorney's office. The U.S. Court of Appeals rules in the government's favor, at least in part, in more than 92 percent of cases. The deterrents for the accused to not argue its side -- lose your reputation and a little money by pleading out or risk losing everything, including your freedom -- are powerful.

What happens to the innocent when prosecutors abuse their power to further their careers or cater to political expediency?  Think of the 2006 Duke lacrosse fiasco, which shattered the lives of many young men.  Or the corruption case against Ted Stevens, the former GOP senator from Alaska; the case was overturned by a judge who concluded that he had never seen such mishandling and misconduct by prosecutors.  Or the prosecution of the accounting firm Arthur Andersen, found guilty of obstruction of justice in its audit of Enron. The criminal charges were reversed long after the company had dissolved, its 85,000 employees dispersed. All are a testament to the institutional pressures and the personal ambition of prosecutors, with the civil liberties of individuals and the rights of corporations compromised.

At what point do the potential public benefits of vigorous prosecution outweigh the harm when legal protections are suspended?

Most people find it difficult to hold much sympathy for corporations, often forgetting that we depend on a dynamic, competitive economy for our welfare. The victims of overzealous prosecutors and ambitious government agencies are often workers and their families, including many small-business owners who have played by the rules yet now find themselves targets -- businessmen such as Henry Fischer.  As Fischer says, "I hope nothing like this happens to you."

July 21, 2009 in Who Sentences? | Permalink | Comments (12) | TrackBack

July 20, 2009

Should very young sex offenders be placed on a registry?

These two notable pieces from yesterday's Dallas Morning News prompts the question in the title of this post:

Here is how the first of these pieces gets started:

The faces of child sex offenders are startling — chubby cheeks, big eyes, a mop of hair, or wispy strands held back with barrettes. The descriptions on Texas' public registry are equally jolting: 4 feet tall, 65 pounds; 4 feet, 2 inches, 70 pounds.  "Those are not the people that we're walking around terrified of," says Michele Deitch, a University of Texas law professor.

The inclusion of children as young as 10 on the state's public sex offender registry is a little-known policy — even to juvenile justice experts such as Deitch.  "I'm absolutely a little bit shocked that kids that young can be on the list," says Deitch, who teaches juvenile justice policy at the LBJ School of Public Affairs.

She's stunned because public registration contradicts the purpose of juvenile justice: to give kids a second chance.  In the case of some juvenile sex offenders, their criminal records are off limits, but information about their crime is easily accessible on the Internet. "It is a terrible situation," Deitch says.  "The juvenile justice system is designed to rehabilitate kids and to make sure that they can change."

According to the Texas Department of Public Safety, there is no minimum age for inclusion on the state list.  But a child must be at least 10 to be handled by the state juvenile justice system, so a judge may order an offender that young to register.  No child can be certified as an adult in Texas until age 14.

Shocked though Deitch and others may be, Texas is actually more liberal on juvenile sex offender registration than some states.  After experimenting with mandatory registration from 1999 until 2001, registration was left to judicial discretion.  Juvenile registration lasts for only 10 years, and those on the list may petition for removal.

In some states, children can be registered at age 7, though Nicole Pittman, a Philadelphia attorney who monitors juvenile sex offender registration laws nationwide, says adjudication of children younger than 10 is rare.

July 20, 2009 in Sex Offender Sentencing | Permalink | Comments (15) | TrackBack

Good (and surprising) news about crime rates

This new piece from the Washington Post, which is headlined "Major Cities' Plummeting Crime Rates Mystifying," provides both good news on crime rates and a new reason to wonder if anyone can assess with any confidence what makes crime rates rise and fall.  Here are excerpts:

Violent crime has plummeted in the Washington area and in major cities across the country, a trend criminologists describe as baffling and unexpected.  The District, New York and Los Angeles are on track for fewer killings this year than in any other year in at least four decades.  Boston, San Francisco, Minneapolis and other cities are also seeing notable reductions in homicides.

"Experts did not see this coming at all," said Andrew Karmen, a criminologist and professor of sociology at the John Jay College of Criminal Justice in New York.... Criminologists have different theories about why crime is down so much, although many agree that the common belief that crime is connected to the economy is false....

The District is on track to have fewer killings than in any year since 1964, when the population was about 760,000 and Vietnam War protests were just beginning.  In the years since, the city has struggled at times with civil unrest, the arrival of crack cocaine and the rise of street gangs. In 1991, the District was known as the murder capital of the United States, recording 479 that year.  This year, there have been 79....

Chuck Wexler, executive director of the Washington-based Police Executive Research Forum, said the drop in homicides this year is notable, especially considering the weather.  "This does come at an important time," he said.  "We're midway through summer, and summer is when you see the most significant increase in street violence. Departments have had to be more strategic in terms of gangs and hot spots."  Wexler said that crime isn't down everywhere.  Baltimore and Dallas are among some cities experiencing a higher number of killings compared with last year.

Gary LaFree, a criminology professor at the University of Maryland, said it has taken police decades to figure out how to effectively target crime.  "In the '60s, crime was like an act of God, like a tornado or earthquake," LaFree said.  "Where policing has changed is that we've gotten the idea this is a problem we created and there are human solutions to it.  Obviously, crime is not randomly distributed.  It is connected to hot spots in cities and other areas."

LaFree and others agree that crime doesn't automatically go up when the economy is poor. Property crime is also trending down in many jurisdictions, including the District, Prince George's and Montgomery.  The FBI reported last week that bank robberies across the country fell in the first quarter of the year, with 1,498 reported, compared with 1,604 in the first quarter of 2008.  Criminologists point to the Great Depression in the 1930s as a time of relatively low crime compared with the Roaring Twenties, when the country experienced more violence.

Okay team, in an effort to generate some debate, I will throw out two not-quite-absurd hypothesis for the unexpected drop in crime being reported here:

Hypothesis #1 — More guns, less crime:  In the wake of the Supreme Court's ruling in Heller and (silly?) concerns about possible new gun control efforts under and Obama Administration, gun sales have been up a lot over the last year.  Perhaps this new encouraging crime data reveals that more people packing heat really can help reduce crime rates.

Hypothesis #2 — More hope, less crime:  The election of Barack Obama, who ran on a campaign of hope, surely embodies the cliche that anyone can grow up in America and become President.  In addition to breaking barriers with historic appointments to the positions of Supreme Court Justice, Attorney General and Solicitor General, President Obama has often preached messages of personally responsibility as well as hope.  Perhaps giving more folks good reasons to hope leads to fewer folks having bad reasons to commit crimes.

July 20, 2009 in Detailed sentencing data | Permalink | Comments (11) | TrackBack

Seventh Circuit blesses considering defendant's cooperation without a 5K motion from the government

Tucked in the back of a long panel opinion dealing with various sentencing issues is a notable statement about a district judge's post-Booker discretion that, I believe, formally breaks some new ground for the Seventh Circuit.  Near the end of US v. Knox, No. 06-4101 (7th Cir. July 20, 2009) (available here), the Seventh Circuit panel makes this statement: "We agree with Davis that, as a general matter, a district court may consider a defendant’s cooperation with the government as a basis for a reduced sentence, even if the government has not made a § 5K1.1 motion."

In the immediate wake of Booker, federal prosecutors often contested and/or complained if a district judge sought to reduce a based on a defendant's cooperation absent a government 5K motion.  In the wake of Gall and Kimbrough, I do not believe federal prosecutors still resist the notion that a district court's sentencing authority extends this far.  Nevertheless, the fact that the Seventh Circuit expressly declares in this new ruling that a "defendant’s cooperation with the government as a basis for a reduced sentence" even absent a government motion seems noteworthy.

July 20, 2009 in Booker in the Circuits | Permalink | Comments (4) | TrackBack

"Texas reporter's seen unrivaled number of U.S. executions"

The title of this post is the headline of this story now being featured at CNN.com.  I am not quite sure why CNN now thinks it is newsworthy to note who has been a witness to the most executions, but here are snippets of this (human-interest?) piece:

It takes seven minutes to execute a death row inmate, according to the state of Texas. At that rate, Mike Graczyk has spent about 40 hours of his life watching men — and a few women — die.

Graczyk, a correspondent for The Associated Press, is believed to hold a macabre record. He's almost certainly watched more executions than anyone else in the United States....

He's on the witness list for 315 of the state's 439 executions — more than any other reporter, prison employee or chaplain — and no records were kept for another 80.  In his early days, he kept count.  But he eventually stopped.  He didn't want to know....

Graczyk works in the AP's Houston bureau — it's closest to the state's execution chamber in Huntsville.  Since the early 1980s, he's made the hourlong drive north almost every time an inmate has faced the needle....

Don Reid, a writer for the AP and, before that, a Texas newspaper, witnessed 189 executions in the 1960s, when Texas still strapped inmates to "Old Sparky," the nickname for the state's electric chair.  The experience changed Reid, who died in 1981, from a supporter of the death penalty to an opponent.  He wrote a book, "Have a Seat, Please," chronicling that transformation.

Graczyk said he doesn't worry about the mental toll of watching so many deaths.  His bosses with the AP have offered counseling.  He's declined.  "To see someone go to sleep  — not to sound insensitive — but the carnage at the murder scene is harder than what you see in the death house in Huntsville," he said.

July 20, 2009 in Death Penalty Reforms | Permalink | Comments (16) | TrackBack

Michael Vick now a free man (subject to three years on supervised release)

This AP article, headlined "Ex-NFL star Vick released from federal custody," provides this update on the legal status of football's most famous federal felon:

Vick's attorney Lawrence Woodward told The Associated Press outside Vick's suburban Virginia home that the former Atlanta Falcons quarterback had been released from federal custody as scheduled. That means Vick no longer has to wear the electronic monitor he's had on while under home confinement for the last two months of his 23-month sentence.

Shortly before Woodward came out of the house, two men in a government car with a federal Bureau of Prisons folder on the dashboard paid a brief visit to the home. They carried a large case similar to the one that Vick's ankle monitor was delivered in when he started home confinement. The men declined to identify themselves or speak to waiting reporters....

Under the federal truth-in-sentencing law, Vick had to serve at least 85 percent of his sentence. He served the first 18 months in the federal penitentiary in Leavenworth, Kan., before being transferred to home confinement in May.

While on home confinement, Vick — once the NFL's highest-paid player — worked a $10-an-hour construction job for a few weeks.  He switched jobs last month, assisting in children's health and fitness programs at the Boys and Girls Clubs.

Vick will remain on probation for three years.  He also is under a three-year suspended sentence for a state dogfighting conviction.

Technically, Vick is not "on probation" for the next three years, rather he is subject to federal "supervised release."  But I am not sure this legal labeling should matter much for football fans trying to figure out if Vick is worth a pick in their upcoming fantasy football drafts.

July 20, 2009 in Celebrity sentencings | Permalink | Comments (6) | TrackBack

July 19, 2009

"Appellate Review of Sentencing Policy Decisions after Kimbrough"

The title of this post is the title of this new piece on SSRN by Carissa Byrne Hessick.  Here is the abstract:

In Kimbrough v. United States the U.S. Supreme Court addressed a question left open in United States v. Booker: whether to permit district courts to make sentencing decisions based on a policy disagreement with the Federal Sentencing Guidelines.  The Booker Court, in order to avoid a Sixth Amendment jury right problem inherent in mandatory sentencing regimes, had held that the Guidelines were purely "advisory" and that district courts had discretion to sentence outside the ranges prescribed by the Guidelines.  Ultimately, the Kimbrough Court held that district courts could sentence outside the advisory Guideline range based solely on a policy disagreement with the Guidelines, as opposed to limiting judicial discretion to case-specific criteria.  At the same time, however, the Kimbrough opinion contained language suggesting that sentences based on policy disagreements with those Guidelines that are the product of the U.S. Sentencing Commission’s expertise may be subject to "closer" appellate review.  This Symposium Article explores the differing approaches regarding sentencing policy decisions taken by U.S. Courts of Appeals since the Kimbrough decision.  It notes that the varying degrees of appellate scrutiny are largely attributable to (a) some courts electing not to follow the dicta in Kimbrough for when "closer review" may be warranted and (b) the circuits' disagreement regarding Kimbrough's effect on previous circuit precedent.  The Article also suggests how to promote sentencing uniformity among district courts without running afoul of the Sixth Amendment.

July 19, 2009 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

"Sex-offender costs to skyrocket"

The title of this post is the headline of this lengthy and effective piece in today's Des Moines Register.  The piece spotlights how legislators seem willing, even in tough economic times, to "spare no expense" when it comes to regulating sex offenders.  Here are excerpts:

The state law requiring [a sex offender] to be subject to "probation for life" was enacted in 2005. The law is intended to better protect Iowa children from sexual predators, who, previously, could walk out of prison after serving their time with few restrictions.

Few Iowans have been aware of the law change.  Only this year, as the first of those offenders have begun to trickle out of prison, has the cost of the monitoring become a significant concern.

At a minimum, Iowa's experiment with lifetime monitoring will cost about $168 million over the next 20 years, a Des Moines Register analysis has found. "This is going to be an extremely expensive piece of legislation," warned Phyllis Blood, a state analyst for the Iowa Division of Criminal and Juvenile Justice Planning.

Blood helped the Register determine some of the potential costs of the monitoring law. "There will be people who were 15 years old at the time of their offense who will have to be supervised for life," she said.

The $168 million estimate represents the cost in today's dollars of the only two expenses that can measured — electronic monitors and probation officer salaries. The expenses will be needed for the almost 4,000 people expected to be added because of the special post-prison sentences to the 29,000 people already on state probation rolls.  The actual cost — which will also include various types of testing and post-prison counseling — is likely to be far higher, Blood and other state officials said.

Iowa's more intensive monitoring was part of the Legislature's response to public outrage over the highly publicized murder of Jetseta Gage, a Cedar Rapids 10-year-old, in 2005.  But state leaders are getting their first whiff of the fiscal impact this year, as they face a $1 billion gap between state revenues and state expenses projected for fiscal year 2011.

Unlike other states' laws, Iowa's "special sentence" legislation provides no way to ever release someone from a lifetime of probation. That is likely to be a problem for the state, officials in other states say. "It's an extremely good tool for the people who need it," said Wes Shipley, an adult probation supervisor for sex offenders in Maricopa County, Ariz. "But there are people who get on lifetime probation who don't need it. You have to have a way to get them off."...

Already, Iowa corrections officials have told state leaders that absent more money, they will be forced to reduce supervision of other criminals to fulfill the requirement to track sex offenders for a lifetime.  Costs to treat, supervise and monitor sex offenders have already mushroomed — from $3.3 million to $11.5 million — between fiscal years 2005 and 2010, according to Iowa's Legislative Services Agency.

When questioned about the considerable tab yet to come, several state lawmakers said "no price is too high" to spare even one child from sexual abuse.  "You can't put a price on public safety," said Rep. Deborah Berry, D-Waterloo, vice chairwoman of the House Public Safety Committee. Sen. Keith Kreiman, D-Bloomfield, who chairs the Senate Judiciary Committee, said cost was discussed when the law was changed in 2005. "But we decided that whatever the cost was, it was worth it," he said. 

Treatment experts, state corrections officials and law enforcement officials in other states, where lifetime sentences were begun years ago, say there are reasons lifetime supervision for so many sex offenders may not be a good idea.  "The problem is that in passing one-size-fits-all requirements, you dilute the resources for the people who really need to be watched," said Jill Levenson, a specialist on sex offender treatment and a professor at Lynn University in Boca Raton, Fla.

In Iowa, budget limits and existing requirements for sex offender monitoring have already forced the state to reduce supervision of other convicts on probation.

July 19, 2009 in Sex Offender Sentencing | Permalink | Comments (21) | TrackBack

Continued buzzing about the (soft?) sentence given to Fumo

Especially in Pennsylvania's papers, there continues to be plenty of discussion of the 55-month prison sentence imposed on state lawmaker Vincent Fumo for his convictions on various corruption charges.  Here are two stories that caught my eye and provide notable perspectives on both the sentence itself and the debate surrounding it:

The second piece spotlights why there is so frequently political and public pressure for sentences always to go up rather than down: it is very rare that we ever see stories headlined "Criminal's punishment draws outrage as being too harsh."  And, of course, Fumo was given more than a slap on the wrist: the 66-year-old white-collar offender will spend nearly five of his "golden years" in prison and has to pay $2.4 million.  Nevertheless, because he was convicted of so many charges of so much corruption and still got a below-guideline sentence, perhaps it is not surprising that this particular outcome has generated so much Sturm und Drang.

Recent related posts:

July 19, 2009 in White-collar sentencing | Permalink | Comments (7) | TrackBack