July 28, 2009
Texas to establish
its first another capital defender office
As detailed in this Houston Chronicle article, which is headlined "State to handle capital appeals," Texas is reforming its process of capital defense. Here are more details:
Texas, which executes more convicts than any other state in the nation, will open its first capital defense office next year to manage appeals for death row inmates after years of reports that appointed private attorneys repeatedly botched the job.
“The status quo has been an international embarrassment,” said state Sen. Rodney Ellis, D-Houston, who sponsored the law that created the office. It was supported by an unusual alliance between the State Bar of Texas, the Court of Criminal Appeals and public defense advocates, who all backed it in the last legislative session.
The law was inspired by a series of stories about Texas inmates who lost crucial appeals after court-appointed attorneys missed deadlines or filed only so-called “skeletal” writs — documents with little information often copied from other cases. It represents a significant reform for Texas, one of the only capital punishment states that lacks a public defender to oversee key death row appeals known as state writs of habeas corpus.
The office, with an annual budget of about $1 million and a staff of nine, won't open soon enough to help any of the inmates whose appellate rights were squandered recently. “Better late than never,” said Juan Castillo, one of four death row inmates whose state appeals were never filed by the San Antonio attorney assigned to represent them. “This is a start. There's a lot of cases” that have been screwed up....
The Office of Capital Writs will be funded by redirecting money already in the state budget: $500,000 formerly used to pay private attorneys for appeals and $494,520 from the state's Fair Defense account, already earmarked for indigent defense. Ultimately, its attorneys will likely handle most state appeals — about 10 a year, if the current pace of death sentences continues.
UPDATE: Post title altered in response to comments.
"Prison consultants help inmates get good digs"
The title of this post is the headline of this article about "a type of prison consultant increasingly popular among white-collar wrongdoers." Here's more from an interesting piece:
From Martha Stewart to Michael Vick, prison consultants are often hired by celebrities, white-collar miscreants and disgraced politicians to lobby for good prison placement, mitigate sentence length and offer crash courses in prison culture. Last week's arrests of 44 people in a wide-ranging corruption probe that netted public officials and religious leaders in New York and New Jersey may soon produce a batch of new clients.
The Federal Bureau of Prisons is aware of the work of prison consultants, but the agency treats all requests from prison consultants as it would any request from the general public, said spokeswoman Felicia Ponce. Consultants say that they never promise good placement and that lobbying for it is only one aspect of what they do for their clients.
"It's like going to a foreign country that you've never been to before — different language, people's mannerisms," said Tim Miller of the San Diego-based Dr. Prison consultant service. "When people are entering into the system, we help them look at themselves in ways they may not see themselves."
Miller says his firm first assesses a client's "prison demeanor" and then tailors advice accordingly. Often, former powerbrokers are told they can no longer order others around and shy people are urged to learn to play cards or talk sports so they don't seem anti-social. Clients are counseled, he said, to always stick with their own race — regardless of how open-minded they might be in the outside world — and are coached to never let anyone cut in front of them in the food line. They're warned that dorm environments are more volatile than single cellblocks and that most altercations take place in the TV room....
Herbert Hoelter said he is on retainer as a professional favor to Madoff's lawyer, Ira Sorkin, but is not being paid by the disgraced financier he describes as indigent. A trained social worker and pioneer in sentencing consulting, Hoelter co-founded in 1977 the Maryland-based nonprofit National Center on Institutions and Alternatives, which has represented Stewart, Vick, Michael Milken and Ivan Boesky.
Several other consultants learned the trade the hard way: by serving time themselves. "Many lawyers think their job is done the day of sentencing, that's when my job typically begins," said John Webster, founder of the Nashville-based National Prison and Sentencing Consultants. Webster, a former attorney, started his company in 2002, shortly after his release from a 13-month stint in federal prison for lying to the FBI while representing a client in a New Jersey securities fraud case.
"The true punishment of a federal prison camp is the sheer boredom," said Webster, who charges a flat rate of $3,500 for what he calls "complete prison preparation," or a per-diem rate for cases that involve travel or investigative work. White-collar offenders "have to understand where they're going and the kinds of people they'll be around," Webster said. "They're no longer the captain of the ship or the leader of the pack."
Larry Levine of the Los Angeles-based companies Wall Street Prison Consultants and American Prison Consultants says his 10 years of hard time for narcotics and possession of counterfeit securities, among other charges, guarantee that his advice is genuine. His firm offers a primer called "Fed Time 101," covering everything from inmate etiquette to suing a Bureau of Prisons employee. .
Some of the amici briefs in support of the defendants in Graham and Sullivan
I am still working through the top-side merits briefs in Graham and Sullivan (discussed here), which are the two SCOTUS juve LWOP cases that present fascinating Eighth Amendment question. I hope to be able to find time in the weeks ahead to blog about what these merits briefs argue (and what they do not argue).
In the meantime, folks ahead of me on their juve LWOP reading can and should start checking out the 14 amicus briefs filed on behalf of the defendants that the SCOTUSwiki folks have posted here and here. Though I hope to eventually blog about what some of these amici argue, I hope readers might get a running start by noting any especially interesting or unexpected argument to be found in these friendly briefs.
It seems as though the Obama Administration's Department of Justice did not file a brief on behalf of the defendants in these cases. I perhaps can understand the political calculus leading to that reality, but it is another disappointing example of the disinclination of Obama's DOJ to spend any political capital in order to advocate on behalf of even juvenile criminal defendants.
Some other posts on the Graham and Sullivan cases:
- Does Roper suggest young juve LWOP is unconstitutional?
- SCOTUS grants cert in Sullivan, juve LWOP case
- The (unpreserved?) procedural issues in Graham juve LWOP case
- What might (and should) DOJ and other potential amici say about Graham and Sullivan?
- Analyzing the cert grants in both Graham and Sullivan
- Gearing up for the SCOTUS juve LWOP cases on the horizon
- Top-side briefs in Graham and Sullivan, the two SCOTUS juve LWOP cases
"[T]he felon dispossession dictum may lack the 'longstanding' historical basis that Heller ascribes to it"
The title of this post is a line from a concurrence by Judge Tymkovich about Heller and the 922(g)(1) felon-in-possession law in US v. McCane, No. 08-6325 (10th Cir. July 28, 2009) (available here).
In his concurrence to an opinion rejecting a Second Amendment challenge to a 922(g)(1) conviction, Judge Tymkovich explains why he feel he must follow the dicta in Hellerindicating that felon-in-possession laws are sound under the Second Amendment. But he goes on to express concern about its soundness --- which he describes as "deus ex machina" dicta and leads him to wonder "at least with regard to felon dispossession, whether the Heller dictum has swallowed the Heller rule." Judge Tymkovich also expresses concern with the Heller dicta's "inhibiting effect" on lower courts charged with applying Heller.
Needless to say, in light of many of the prior posts in which I have discussed these issues, I am very glad to see Judge Tymkovich giving this matter thoughtful treatment.
Some related Second Amendment posts:
- Might Judge Sotomayor think the Second Amendment "deserves to be on equal footing with the First Amendment" for ex-cons?
- Seventh Circuit resists extending Second Amendment to the states
- NRA quickly petitions SCOTUS for Second Amendment incorporation
- SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
- Even the Chief and Justice Scalia are content to damn gun possession with faint praise
- Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?
- The lack of originalist justification for excluding felons from the Second Amendment
- Assailing the unjustified Second Amendment limits in Heller
- Notable new Alaska appellate decision on denying gun rights to non-violent felons
- "Why Can’t Martha Stewart Have a Gun?"
- What might 2009 have in store for . . . Second Amendment jurisprudence?
New York Times editorial on "12 and in Prison"
Today's New York Times has this notable editorial about young kids in adult criminal justice systems. Here are some excerpts:
The Supreme Court sent an important message when it ruled in Roper v. Simmons in 2005 that children under the age of 18 when their crimes were committed were not eligible for the death penalty. Justice Anthony Kennedy drew on compassion, common sense and the science of the youthful brain when he wrote that it was morally wrong to equate the offenses of emotionally undeveloped adolescents with the offenses of fully formed adults.
The states have followed this logic in death penalty cases. But they have continued to mete out barbaric treatment — including life sentences — to children whose cases should rightly be handled through the juvenile courts.
Congress can help to correct these practices by amending the Juvenile Justice and Delinquency Prevention Act of 1974, which is up for Congressional reauthorization this year. To get a share of delinquency prevention money, the law requires the states and localities to meet minimum federal protections for youths in the justice system. These protections are intended to keep as many youths as possible out of adult jails and prisons, and to segregate those that are sent to those places from the adult criminal population.
The case for tougher legislative action is laid out in an alarming new study of children 13 and under in the adult criminal justice system, the lead author of which is the juvenile justice scholar, Michele Deitch, of the Lyndon B. Johnson School of Public Affairs at the University of Texas at Austin. According to the study, every state allows juveniles to be tried as adults, and more than 20 states permit preadolescent children as young as 7 to be tried in adult courts.
This is terrible public policy. Children who are convicted and sentenced as adults are much more likely to become violent offenders — and to return to an adult jail later on — than children tried in the juvenile justice system....
The study’s authors rightly call on lawmakers to enact laws that discourage harsh sentencing for preadolescent children and that enable them to be transferred back into the juvenile system. Beyond that, Congress should amend the juvenile justice act to require the states to simply end these inhumane practices to be eligible for federal juvenile justice funds.
The study referenced in the editorial is available at this link.
Japan continues its recent stepped-up pace for executions
As detailed in this news report, which is headlined "Japan executes three for multiple murders," the one other major industrial nation with the death penalty has been stepping up its pace of executions in recent years. Here are details from the article:
Japan on Tuesday hanged three inmates convicted of multiple murders including a Chinese national and a middle-aged man who found his victims through an Internet suicide site, the justice minister said.
The government identified the condemned as Hiroshi Maeue, 40, Yukio Yamaji, 25, and Chinese national Chen Detong, 41, who had killed three of his compatriots and wounded three more Chinese people.
All three men had committed "grave and cruel" crimes and "taken precious lives with very selfish motives," Justice Minister Eisuke Mori said after the sentences were carried out in Tokyo and the western city of Osaka.
Maeue, executed in Osaka, killed three people including a 14-year-old in 2005 after he got to know them separately through an Internet website where people contemplating ending their lives meet to make suicide pacts. Maeue arranged to meet his victims under the pretense they would jointly commit suicide through carbon monoxide poisoning. He then lured them into a van in a parking lot, tied their hands and feet and choked them to death. He confessed to deriving sexual pleasure from watching people suffocate.
Yamaji, also executed in Osaka, raped and then stabbed to death two sisters, stole their money and set fire to their apartment in 2005. Chen, the Chinese national, was executed in Tokyo for killing three of his compatriots and injuring three more in Kawasaki, southwest of Tokyo, in 1999.
Japan, which executed four convicted murderers in January, is the only major industrial nation other than the United States to impose the death penalty. Capital punishment is overwhelmingly supported by the public in Japan, which has one of the world's lowest crime rates.
But Japan has regularly come under fire from the European Union and campaigners over its use of the death penalty, especially its practice of hanging inmates without any prior warning for them or their families.... Despite the criticism, conservative governments have stepped up the pace of executions. Last year Japan hanged 15 death-row inmates, the highest number since 1975, when the country executed 17 people.
"Court rejects state banishment of sex offender"
The title of this post is the headline of this local article reporting on a state intermediate appellate court ruling out of Mississippi. Here are the particulars:
The state Court of Appeals has thrown out a lower court order that a McComb man be banished from Mississippi once he completes a 25-year sentence for a sex crime conviction.
Richard A. Simoneaux pleaded guilty in 2004 in Pike County to spying on and assaulting nursing home residents. Simoneaux pleaded guilty to attempted burglary, two counts voyeurism, sexual battery, sexual abuse of a vulnerable adult and burglary of a dwelling....
The trial judge sentenced Simoneaux to a total of 30 years without parole with five years suspended. The judge also ordered Simoneaux to leave Mississippi once he is released from prison....
On the issue of banishment, the Appeals Court said Simoneaux consented to it as part of the sentencing agreement with prosecutors. Nonetheless, Appeals Judge Jimmy Maxwell said the "practice of dumping defendants on other jurisdictions has been held improper by the Mississippi Supreme Court and federal courts on public policy grounds."
Maxwell said banishment has been upheld where the trial court found, among other things, that it did not hinder rehabilitation and could be shown as in the best interests of the defendant and the public. "While banishing Simoneaux from Mississippi would perhaps provide a degree of protection to the citizens of our state, we certainly do not want our sister states repaying us for the favor," Maxwell said.
The full Mississippi Cort of Appeals opinion in this case can be accessed at this link.
Two more death sentences "completed" in California
Though executions in California have been on hold for more than three years, this local story spotlights that some of the nearly 700 condemned persons on the state's death row are still dying. The story is headlined "Natural Causes Kill 2 Calif. Death Row Inmates," and here are the particulars:
Two San Quentin death row inmates died of natural causes over the weekend, state corrections officials said Monday Fred Harlan Freeman, 69, and Miguel Angel Martinez, 39, both died while being treated at community hospitals in Marin County for long-term illnesses, San Quentin spokesman Lt. Rudy Luna said....
Since California reinstated the death penalty in 1978, 47 death row inmates have died of natural causes, according to the Department of Corrections and Rehabilitation. Seventeen have committed suicide, 13 have been executed in California and five have died from other causes, including killings by other inmates.
Resentencing in terror case results in life sentence
As detailed in this Washington Post article, a controversial terrorism prosecution has resulted in a life sentence following a resentencing required by a Fourth Circuit ruling that found an initial sentence of 30-years to be unreasonably lenient. Here are the details:
A Falls Church man convicted of plotting with al-Qaeda to kill President George W. Bush was resentenced to life in prison Monday after the judge said his release would threaten "the safety of the American citizenry."
Ahmed Omar Abu Ali had been given a 30-year prison term after he was convicted in 2005 of joining an al-Qaeda conspiracy to mount a series of Sept. 11-style attacks and assassinations in the United States. The U.S. Court of Appeals for the 4th Circuit upheld the conviction last year but sent the case back for resentencing, indicating that the sentence should be more severe.
U.S. District Judge Gerald Bruce Lee obliged on Monday, saying he had reevaluated the case and concluded that the danger of ever releasing Abu Ali is too great. "I cannot put the safety of the American citizenry at risk," he said, citing Abu Ali's "unwillingness to renounce the beliefs that led to his terrorist activities."...
Before the judge imposed the tougher sentence Monday, Abu Ali said he was being mistreated at the highly secure federal prison in Colorado known as the "supermax," and he blamed "a rogue Justice Department" for his conviction. "I cannot pretend that this is justice," said Abu Ali, who said he wanted to "remind" the judge "that one day you will go before the divine tribunal. Allah, he knows the doings of every soul. If you are comfortable with that, then you can decree whatever you want to decree." As he left the courtroom, Abu Ali smiled and waved to a large crowd of supporters, some of whom called out in Arabic "Salaam aleikum," or "Peace be with you."...
His attorney, Joshua Dratel, said in an interview that the life term was "unfortunate" and that the original sentence was reasonable. "What they are really doing is setting a mandatory minimum term of life in prison for terrorism cases," said Dratel, who had urged Lee to resentence Abu Ali to no more than 30 years. "That's contrary to what the law is."
Prosecutors asked the judge to impose life. "This defendant planned acts of terrorism that were designed to inflict massive casualties on innocent civilians within the United States," said Assistant U.S. Attorney Stephen M. Campbell.
David H. Laufman, who prosecuted the case and is now a Washington defense lawyer, attributed the sentence in part to "Abu Ali's refusal to express even a scintilla of remorse for his conduct," and he said the case "underscores the ability of federal courts to resolve the most complex legal issues" in terrorism matters. For years, U.S. officials have been debating whether to bring such cases before the criminal justice system or to military tribunals. The 4th Circuit judges who reviewed Abu Ali's conviction indicated they thought some terrorism cases should remain in the federal courts.
July 27, 2009
Federal felon Michael Vick allowed to return to work in NFL
Though it is pehaps too soon to call this latest news from the NFL evidence of a successful prisoner reentry, it is notable (and I think appropriate) that Michael Vick will be able to try to play professional football again now that he has completed his federal prison term. Here are the basics:
Michael Vick can make a conditional return to the National Football League, about two years after he was indefinitely suspended after pleading guilty to federal dogfighting charges.
Vick can practice immediately and play in the preseason’s final two games, if he can find a team that will hire him, the NFL said in a news release. Commissioner Roger Goodell will consider allowing Vick to play in regular season games by mid-October, the sixth week of the regular season. “My decision at that time will be based on reports from outside professionals, your probation officer and others charged with supervision your activities,” Goodell said in a letter to Vick. “This step-by-step approach is not meant to be a further punishment and should not be viewed as such. Instead it is intended to maximize the prospect that you can successfully resume your career and your life.”
"'Crack tax' shot down: Supreme Court rules case violates state constitution"
The title of this post is the headline of this local article reporting on a notable split ruling from the Tennessee Supreme Court. Here are the details:
Ruling in a case that originated in Knox County, the state Supreme Court has deemed the so-called "crack tax" enacted by the Legislature five years ago in violation of Tennessee's constitution.
Modeled after a North Carolina law, the Unauthorized Substances Tax required those who have marijuana, cocaine and other illegal drugs to buy tax stamps from the Department of Revenue, which promised confidentiality to purchasers.
People arrested with drugs could then be assessed for back taxes and penalties under the law if they couldn't produce the appropriate tax stamps. Sen. Randy McNally, R-Oak Ridge, was a leading proponent of the legislation.
The Supreme Court ruling came in a 3-2 decision with Justice Gary Wade writing the majority opinion. Joining him were Justices William M. "Mickey" Barker, who is now retired but sat on the hearing panel, and Janice Holder. Justices William Koch and Cornelia Clark voted to uphold the tax.
Basically, the majority said that illegal drugs are not subject to taxation under the state constitution, which authorizes taxes on "merchants, peddlers and privileges." The tax is on possession, they reasoned, not sales, so the possessors are not merchants or peddlers. And since possession of the products in question is outlawed, it's not a legal privilege subject to taxation.
The majority rejected arguments that the law violates the U.S. Constitution's provisions against self-incrimination and double jeopardy. In theory, that means the Legislature could revise the law -- as in making the tax apply to drug sales -- and the statute could pass legal muster.
"Rethinking the Federal Role in State Criminal Justice"
The title of this post is the title of this Essay from Professors Joe Hoffmann and Nancy King that was recently published in the NYU Law Review. I blogged about this piece when it first showed up on SSRN, but I think the important piece merits another mention now that it is in print. Here is the abstract:
This Essay argues that federal habeas review of state criminal cases squanders resources that the federal government should be using to help states reform their systems of defense representation. A 2007 empirical study reveals that federal habeas review is inaccessible to most state prisoners who have been convicted of noncapital crimes and offers no realistic hope of relief for those who do reach federal court. As a means of correcting or deterring constitutional error in noncapital cases, habeas is failing and cannot be fixed. Drawing upon these findings as well as the Supreme Court’s most recent decision applying the Suspension Clause, the authors propose that Congress eliminate federal habeas review of state criminal judgments except for certain claims of actual innocence, claims based on retroactively applicable new rules, or death sentences. The federal government should leave the review of all other state criminal judgments to the state courts and invest, instead, in a new federal initiative to encourage improved state defense services. This approach can deter and correct constitutional error more effectively than any amount of habeas litigation ever could.
Sixth Circuit rules – in an unpublished decision! – that reduced child-porn sentencing is substantively unreasonable
A Sixth Circuit panel issued an important and potentially controversial decision today in a child porn case, though the ruling in US v. Harris, No. 07-4175 (6th Cir. July, 27, 2009) (available here), was handed down as an unpublished opinion. Here is how the opinion starts and ends:
David Harris pleaded guilty to possession and distribution of child pornography. The district court calculated an advisory Guidelines range of 210-262 months for Harris. The district court sentenced Harris to 84 months in prison with three years of supervised release and mandatory mental health treatment. For the reasons given below, we vacate the sentence and remand for resentencing....
The bottom line is that the factors the district court relied on, as articulated in the record, do not appear to justify a variance of this size. This is not to say that the variance itself is per se unreasonable – only that the district court must provide a sufficient justification for such a major variance. The district court in this case did not do so. Instead, the district court placed an unreasonable amount of weight on Harris’s character. It did so despite Harris’s lack of distinguishing characteristics and despite the seriousness of the offense. Accordingly, we find the variance here substantively unreasonable based on the current record.
Though it is clear after Gall, Rita, and Kimbrough that we should not disturb a district court’s discretion absent substantial justification, we remain responsible for ensuring the reasonableness of the sentences imposed by district courts. Accordingly, we VACATE and REMAND for resentencing consistent with this opinion.
This ruling seems especially significant because the panel declares a seven-year prison sentence for a non-violent, first offender "substantively unreasonable." And yet the fact that the decision is released as an unpublished opinion perhaps indicates that the panel does not want its ruling to be too consequential. Further still, the opinion suggests that a sentence somewhat below the 17+ years recommended by the guidelines could be reasonable, but it gives no real guidance as to when the magic reasonableness line lies between 7 and 17 years in prison for this kind of offense and offender
Some related federal child porn prosecution and sentencing posts:
Around the blogosphere
Here are a few of the posts of note from around the blogosphere that should be of interest to criminal justice fans:
From Crime and Consequence here, "So-Called Prosecutor Misconduct"
From The Crime Report here, "Why Is Obama Seeking Rise In Drug Enforcement?"
From Grits for Breakfast here, "Stronger probation praised in drug court setting"
From How Appealing here, "High Court Ruling Shapes Local Control; California Officials To Seek Relief from Court Oversight"
From PrawfsBlawg here, "President Obama and the Paradoxes of Police Power"
From The Volokh Conspiracy here, "If You're Reading This, You're Probably a Federal Criminal"
UPDATE: Here is one more of note from this afternoon:
- From the WSJ Law Blog here, "Spin the Wheel, Get a Corruption Sentence"
July 26, 2009
Potent op-ed notes what is missing from the Gates-gate debate
Writing in today's New York Times, Glenn Loury has this potent op-ed putting the brouhaha surrounding the Gates incident in a broader context. Here are excerpts:
[T]his much-publicized incident is emblematic of precisely nothing at all. Rather, the Gates arrest is a made-for-cable-TV tempest in a teapot. It is the rough equivalent of a black man being thrown out of a restaurant after having berated an indifferent maître d’ for showing him to a table by the kitchen door, all the while declaring what everybody is supposed to know: this is what happens to a black man in America.
Certainly, the contretemps shed no relevant light on the plight of the millions of black men on society’s margins who bear the brunt of police scrutiny and government-sanctioned coercion. I find laughable, and sad, Professor Gates’s declaration that he now plans to make a documentary film about racial profiling. Is that as far as his scholarship on the intersection of race and policing in America extends? Where has this eminent scholar of African-American affairs been these last 30 years, during which a historically unprecedented, politically popular, extraordinarily punitive and hugely racially disparate mobilization of resources for the policing, imprisonment and post-release supervision of those caught up in the criminal justice system has unfolded?
Moreover, it is a shame that it takes an incident like this to induce a (black!) president to address these issues forthrightly. President Obama spoke to the N.A.A.C.P. this month, reaffirming the standard racial narrative while lecturing the black community on the need for better family values. But he barely uttered a word about the ways in which public policies — policies over which he might exert no small influence — have resulted in the hyper-incarceration of poor black men.
UPDATE: Here's more of Loury's potent observations:
It is depressing in the extreme that the president, when it came time for him to expend political capital on the issue of race and the police, did so on behalf of his “friend” rather than stressing policy reforms that might keep the poorly educated, infrequently employed, troubled but still human young black men in America out of prison. This is to say that, if Mr. Obama were going to lose some working-class white votes to the charge of “elitism,” I’d much rather it have been on countering the proliferation of “three strikes” laws, or ratcheting down the federal penalties for low-level drug trafficking, or inveighing against the racial disproportion in the administration of the death penalty....
I hope that something of lasting value might come from the uproar surrounding the Gates arrest. But my firm conviction is that change will not come about from the moral posturing of politicians or from more intense “sensitivity training” for police officers. Nor will it come from the president having a beer with Professor Gates and Sergeant Crowley, as Mr. Obama suggested in his follow-up meeting with the press on Friday.
Rather, along with Senator James Webb, Democrat of Virginia, I believe we should be pursuing far-reaching reforms in our criminal justice system. We should invest more in helping the troubled people — our fellow citizens — caught in the law enforcement web to find a constructive role in society, and less in punishing them for punishment’s sake. We need to change the ways in which we deal with juvenile offenders, so that a foolish act in childhood doesn’t put them on the road to lifetimes in prison. We should seriously consider that many of our sentences are too long — “three strikes” laws may be good politics, but they are an irrational abomination as policy. We should definitely consider decriminalizing most drug use. We need to reinvent parole.
And, most important, we should weigh more heavily the negative and self-defeating effects that our policy of mass incarceration is having on the communities where large numbers of young black and Hispanic men live.
Noting the realities of federal sentencing after Booker in corruption cases
This new article in the Philadelphia Inquirer, which is headlined "Federal judges freed from sentencing rules," spotlights how the discretionary federal sentencing regime created by Booker has been playing out in corruption cases. Here is how it starts:
Both were powerful state senators. Both were found guilty of fraud. And both submitted reams of letters from supporters who hailed their good deeds as public servants.
Pennsylvania's Vincent J. Fumo, convicted of all 137 counts against him, will soon head off to prison for 4.5 years. New Jersey's Wayne Bryant, who was found guilty of 12 charges, was sentenced Friday to four years behind bars.
While prosecutors had sought longer sentences for both politicians, the cases highlight a kind of back-to-the-future event in the criminal-justice system: the return of discretion in federal sentencing since the U.S. Supreme Court ruled that once-mandatory guidelines are merely advisory.
"We're certainly back to much more subjective and idiosyncratic and discretionary sentencing," said Edward Ohlbaum, a law professor at Temple University who said the prosecutors' expected appeal of Fumo's sentence may well open the next chapter in the debate about how to punish corrupt politicians.
The controversial intersection of criminal justice practice and immigration policy
This New York Times article, which is headlined "Debate Intensifies Over Federal Deportation Policy," spotlights the array of controversial and interesting issues that arise when criminal justice practice and immigration policy intersect. Here is how the article starts:
The Obama administration is vastly expanding a federal effort begun under President George W. Bush to identify and deport illegal immigrants held in local jails. But here in the city where the effort got a trial start eight months ago, people on each side of the immigration debate have found fault with it.
Under the effort, known as Secure Communities, local officials check every set of fingerprints taken at jails against those of people who have had a brush with federal immigration authorities; in the past, they could check only for a criminal history in the F.B.I. database. If a person turns out to be an illegal immigrant, the case is turned over to Immigration and Customs Enforcement for possible deportation proceedings in addition to the criminal charges.
The Obama administration considers the trial program successful enough to pledge $195 million over the next year to expand the effort with an eye toward establishing it nationwide by late 2012, when it is projected to cost about $1 billion a year. It is now under way in 70 counties across the country, including those containing the cities of San Diego, Phoenix, Dallas, Miami and Durham, N.C. “Before we had no idea who was deportable,” said Sheriff’s Deputy Gwen Carroll of Harris County, where Houston is located.
But the trial program’s experience here has raised difficult questions about its goals, critics say, and serves as a stern reminder of the political and practical challenges facing the larger rollout.
Federal officials say that while they are pleased with their new ability to identify illegal immigrants, they do not have enough agents to deport all of those identified. Over all, only a third of those identified in the first seven months of the program as foreign nationals — which includes people with visas and temporary residence cards as well as illegal immigrants — have been deported. “We do have a limited amount of resources,” said David J. Venturella, the director of the federal program. “It’s our priority to focus on the more serious offenders.”
Proponents of stricter enforcement of immigration laws complain that by concentrating on people who pass through the jails, the government is letting too many other illegal immigrants off the hook. On the other side, advocacy groups for immigrants complain that the program has created a climate of fear and paranoia among Hispanics, hampering the police.
Washington Post editorial on "Cocaine Justice"
Today's Washington Post includes this editorial on federal crack/powder cocaine sentencing reform. Here are snippets:
This year marks the 25th anniversary of legislation that created mandatory minimum sentences and established a 100-to-1 sentencing disparity between crack and powder cocaine. Over those 25 years, something close to consensus has emerged that the imbalance is unfair and possibly discriminatory. Attorney General Eric H. Holder Jr. has called for closing the gap, commenting that "we all know that this egregious difference in punishment is simply wrong." Yet it has persisted, filling America's prisons and undermining many people's faith in the criminal justice system....
Such stringent rules have put thousands behind bars: Of current federal prisoners, 55 percent are serving time for drug offenses. Given that 84.7 percent of crack cases are brought against African Americans, the clear inequality fuels witnesses' hesitancy to testify and drives judges and juries to take the law into their own hands, torn between mandatory minimums and their own sense of fairness. For too long, fears of being marked "soft on crime" have deterred members of Congress from correcting this palpable wrong. So last week's unanimous move by the House Judiciary subcommittee on crime, terrorism and homeland security to pass the Fairness in Cocaine Sentencing Act -- which would eliminate references to cocaine base from the federal criminal code and thus equalize penalties for crack and powder -- is an encouraging step in the right direction. The executive branch has already begun to work toward a more rational sentencing policy, with Mr. Holder launching a working group within the Justice Department to review sentencing and corrections policy. If Congress and the Justice Department can join forces on this issue, they may be able to make progress in an area that has long needed it.
Some recent related posts:
- "Momentum Builds to Equalize Cocaine Penalties"
- Still more potent talk from AG Holder about federal sentencing reform