July 21, 2009
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:
- House hearing on "Mandatory Minimums and Unintended Consequences"
- Important and heartening new speech from AG Eric Holder
- Can concerns for dollars and cents finally bring sense to federal mandatory minimum sentencing statutes?
"'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).
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:
- "A new Texas? Ohio's death penalty examined"
- Ohio — aka the Texas of the north — setting busy execution schedule
- Great new (though still dated) examination of the death penalty and plea bargaining
- CNN now talking about the costs of the death penalty and state reforms
- States considering laying off the death penalty during tough economic times
- The economic case against the death penalty getting more and more attention
- More discussion of cost concerns in debates over the death penalty
- Capital case cost concerns continue to inform reform debate
- Still more discussion of the costs of the death penalty
- "Opponents Focus On Cost In Death Penalty Debate"
- What might 2009 have in store for . . . the death penalty in the US?
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."
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.
"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 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:
- Justice experts say sex offender registry ruins a juvenile's 2nd chance
- Sex-offender label on boys unravels family's lives
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.
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.
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.
"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.
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 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.
"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.
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:
From the Philadelphia Inquirer here, "How Fumo's fate stacks up against others' sentences"
- From the Pittsburgh Tribune-Review here, "Ex-senator Fumo's punishment draws outrage as too lenient"
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:
- State senator Fumo gets below-guideline sentence of 55-months imprisonment on corruption charges
- Comparing white-collar apples and drug dealing oranges at sentencing
- "Feds seek to appeal 'unreasonable' Fumo sentence"