August 5, 2009
"Citing Cuts, Public Defenders Refuse New Cases"
The title of this post is the headline of this new article from San Francisco's legal newspaper, The Recorder. It provides yet another window into how tight budget times are impacting criminal justice systems and also how dysfunction the justice system has become in the nation's most populous state. Here is how the piece starts:
Alameda County, Calif.'s public defenders on Monday stopped taking many out-of-custody misdemeanor and probation violation cases, citing the expected loss of 14 attorneys through layoffs on Sept. 4.
Public Defender Diane Bellas confirmed in an e-mail that her attorneys have started declaring conflicts of interest "based on overload." The move is part of a "transition plan," she said. Bellas told county leaders that could shift more than 10,000 cases to a panel of private attorneys over the next year. " ... The public defender is barred from undertaking representation in cases when it knows it has neither the necessary resources nor capacity," Bellas wrote. "And ... the public defender will not abandon existing clients. Accepting new referrals through Sept. 4, 2009, when attorney staff will drop from 102 to 88, would result in a violation of both of these recognized canons and, operationally, give rise to an unmanageable caseload on Sept. 8, 2009."
Bellas informed Alameda County leaders of the plan in a July 13 memo. County Administrator Susan Muranishi was in meetings and unavailable to talk about the public defender's office Monday, a spokeswoman said.
Bellas' actions reflect the dire choices public defenders around the nation are facing as government budgets shrink. Across the bay in San Francisco, Public Defender Jeff Adachi said his office started declining complex, time-intensive cases in March and has since referred about 20 defendants to private counsel. And even though the Board of Supervisors restored $950,000 of the proposed cuts his office was slated to take, Adachi said he's certain he'll have to refuse representation "in an even greater number of cases." "When your staff is already working beyond capacity, there is no way to absorb those cases," he said.
In refusing to take new cases, attorneys are citing a March decision by California's 1st District Court of Appeal, In re E.S., 09 C.D.O.S. 3042, that said public defenders who can't effectively assist their clients because of overwhelming caseloads should do everything they can, including declining new cases, to ease their burden. "That really was the first case to acknowledge that, not only does the chief defender have a moral and professional obligation to declare unavailability" but they must do so or risk being held responsible "for failure to represent clients," Adachi said.
U Penn JCL symposium on Eighth Amendment litigation
I just noticed that a terrific issue of the University of Pennsylvania Journal of Constitutional Law, which follows-up on its symposium on "Litigating Under the Eighth Amendment," is fully available on-line here.
The pieces in the issue, all authored by leading scholars in the field, cover a wide array of topics ranging from the death penalty, to prison reform litigation, to how excessive prison punishments should be assessed under the Eighth Amendment. Especially with many of these issues on the Supreme Court's docket for the coming Term, this JCL issue is a must-read for constitutional law fans as well and criminal law folks.
"DOC May Have To Pay For Sex Offenders To Stay In Motels"
The title of this post is the headline of this local story from Colorado that highlights the challenges facing sex offenders — and facing those responsible for managing and monitoring sex offenders — after release from prison. Here is how the piece starts:
The Department of Corrections and the Denver Police Department told 7NEWS they were scrambling to find alternative housing for roughly 100 registered sex offenders who currently stay at Crossroads, an overnight men's shelter run by the Salvation Army.
Last week, the Salvation Army announced they would be closing the shelter by mid-August. The city and law enforcement urged them to keep it open until Aug. 31. Sex offenders told 7NEWS that housing isn't easy to come by because of the stigma associated with the crime. They said they can't find a job and can't find a place to live.
Law enforcement officers said they understand, which is why they believe Crossroads worked so well for these men. In many cases, the DOC even paid the $35 a week required for a bed. DOC spokesman Tim Hand said the Dept. of Corrections had to find and provide a transitional housing situation for men who couldn't afford it and Crossroads made it easier for them to monitor the offenders in their system.
Now, the DOC will be forced to go to the families of sex offenders and ask them to take these men in. If that doesn't work they will be forced to put them in motels. Hand said the Dept. of Corrections will have to look at their budget because the money comes out of their general fund and they were not prepared for Crossroads' closing.
New NY Times editorial on felon disenfranchisement
Responding in part to this recent split First Circuit ruling upholding Massachusetts decision to deny the vote to incarcerated prisonder, the New York Times today has this editorial headlined "A Loss for Voting Rights." Here are excerpts:
Voting rights advocates have had little success challenging felon disenfranchisement laws in court. Last week, the United States Court of Appeals for the First Circuit, in Boston, became the latest federal court to uphold a ban on voting by convicted felons. Despite these setbacks, the cause is important. Voting rights advocates should keep fighting in the courts, state legislatures and Congress.
In 2000, Massachusetts changed its laws to prohibit felons in prison from voting. Until then, it was one of only three states that let felons vote from behind bars. Even with the change, Massachusetts remains one of just 13 jurisdictions that disenfranchise felons while they are incarcerated but not after they are freed....
The United States aspires to be a nation in which the government rules by the consent of the governed people. Prisoners do not cease to be people.
Felon disenfranchisement is also bad prison policy. In recent years, the prison system has all but given up on trying to rehabilitate prisoners. Allowing felons to vote is good preparation for making them free, law-abiding citizens.
August 4, 2009
Federal judicial panel orders California to drastically cut prison population
This New York Times piece provides the highlights of a major prison conditions ruling coming from California late today:
A panel of federal judges ordered the California prison system on Tuesday to reduce its inmate population of 150,000 by 40,000 — roughly 27 percent — within two years.
The judges said that reducing prison crowding in California was the only way to change what they called an unconstitutional prison health care system that causes one unnecessary death a week. In a scathing 184-page order, the judges criticized state officials, saying they had failed to comply with previous orders to fix the health care system in the prisons and reduce crowding, and recommended remedies, including reform of the parole system.
The special three-judge panel also described a chaotic prison system where prisoners were stacked in triple bunk beds in gymnasiums, hallways and day rooms; where single guards were often forced to monitor scores of inmates at a time; and where ill inmates died for lack of treatment.
“In these overcrowded conditions, inmate-on-inmate violence is almost impossible to prevent, infectious diseases spread more easily, and lockdowns are sometimes the only means by which to maintain control,” the panel wrote. “In short, California’s prisons are bursting at the seams and are impossible to manage.”
Attorney General Jerry Brown said previously that he intended to appeal the ruling to the United States Supreme Court. Officials said they would not comment on Tuesday until they had time to read the decision.
“California’s correctional system is in a tailspin,” the state’s independent oversight agency has reported. Ex. P3 at i (Jan. 2007 Little Hoover Commission Report, “Solving California’s Corrections Crisis: Time Is Running Out”). Tough-on-crime politics have increased the population of California’s prisons dramatically while making necessary reforms impossible. Id. at ii, 2-5, 9, 20. As a result, the state’s prisons have become places “of extreme peril to the safety of persons” they house, Ex. P1 at 7-8 (Governor Schwarzenegger’s Oct. 4, 2006 Prison Overcrowding State of Emergency Declaration), while contributing little to the safety of California’s residents, Ex. P3 at ii. California “spends more on corrections than most countries in the world,” but the state “reaps fewer public safety benefits.” Id. at 14. Although California’s existing prison system serves neither the public nor the inmates well, the state has for years been unable or unwilling to implement the reforms necessary to reverse its continuing deterioration.
In this proceeding, we address two particular problems that every day threaten the lives and health of California prisoners. First, the medical and mental health care available to inmates in the California prison system is woefully and constitutionally inadequate, and has been for more than a decade. The United States Constitution does not require that the state provide its inmates with state-of-the-art medical and mental health care, nor does it require that prison conditions be comfortable. California must simply provide care consistent with “the minimal civilized measure of life’s necessities,” Rhodes v. Chapman, 452 U.S. 337, 347 (1981) – care sufficient to prevent the unnecessary and wanton infliction of pain or death, Estelle v. Gamble, 429 U.S. 97, 103-04 (1976). Tragically, California’s inmates have long been denied even that minimal level of medical and mental health care, with consequences that have been serious, and often fatal. Inmates are forced to wait months or years for medically necessary appointments and examinations, and many receive inadequate medical care in substandard facilities that lack the medical equipment required to conduct routine examinations or afford essential medical treatment. Seriously mentally ill inmates languish in horrific conditions without access to necessary mental health care, raising the acuity of mental illness throughout the system and increasing the risk of inmate suicide. A significant number of inmates have died as a result of the state’s failure to provide constitutionally adequate medical care. As of mid-2005, a California inmate was dying needlessly every six or seven days.
UPDATE: The Sacremento Bee has this new op-ed responding to the ruling, which is headlined "Voters, politicians let prison costs soar." Here are its closing paragraphs:
Make no mistake: California brought this situation onto itself, as the judges declared, by continuing to pass tough sentencing laws, such as three-strikes-and-you're-out, but refusing to spend what it would take to legally house, clothe, feed, medicate and educate what became a flood of new inmates.
When California launched this lock-'em-up policy 30 years ago -- the result of some Democratic legislators and judges losing their positions after being accused of softness on crime -- the state had about 20,000 inmates. Now it has more than 160,000.
There's an old saying in police and prosecutorial circles: Don't do the crime unless you want to do the time. A political corollary should be: Don't crack down on crime unless you're willing to spend the dime.
"State Intentions and the Law of Punishment"
The title of this post is the title of a newly posted piece on SSRN from Alice Ristoph. Here is the abstract:
Forget dogs: do people distinguish between being stumbled over and being kicked? Assessments of intentions are considerably more complex than Holmes’s classic quip suggests. This Article examines the substantial, but so far overlooked, role of intent analysis in the constitutional law of punishment. As a doctrinal matter, the success or failure of a constitutional challenge to punishment often depends on a judicial assessment of official intent. As a normative matter, constitutional theory and moral philosophy offer conflicting accounts of the significance of intentions to the legal or moral permissibility of acts. Many of the constitutional theorists’ arguments for motive analysis have little applicability in the context of state punishment, and many of the philosophical reasons to deny the normative significance of intentions are especially powerful in that context. If the Constitution is to provide meaningful limitations on the power to punish, we should reconsider, and reduce, the current doctrinal emphasis on state intentions.
Lots of interesting sex offender residency news and notes
I happened to notice a lot of different and interesting local press stories about sex offender residency restrictions this afternoon. Here is a sample:
From the Miami Herald here, "GOP's McCollum calls Florida sex offender limits too harsh"
From Florida Today here, "Florida sex offender's real estate empire capitalizes on buffer zones"
From Foster's Daily Democrat here, "Judge rejects Dover's sex-offender ordiance"
Smokin' Okun: tax scheme scammer gets 100 years in the federal slammer
The feds can now add another triple-digit notch to its white-collar sentencing belt after today's sentencing of the Miami businessman Edward Okun. This Bloomberg report provides the basics:
Edward Okun, the Miami businessman convicted of stealing from customers of his tax-deferral firm, 1031 Tax Group LLC, was sentenced to 100 years in prison for running a $126 million fraud scheme.
U.S. District Judge Robert Payne handed down the sentence today in Richmond, Virginia, where Okun’s company was based. Prosecutors sought a sentence of 400 years, or a similar term amounting to life in prison. Jurors in March found Okun, 58, guilty of conspiracy, wire fraud, money laundering, smuggling and perjury following a three-week trial. “The sentence must deter those who have access to funds of others,” Payne said. “If you ruin lives of others, your life stands to be ruined.”
Okun argued that a term of 10 years to 15 years would suffice. He cited Bernard Madoff’s 150-year sentence, the maximum possible, in June for running a $65 billion Ponzi scheme, and lawyer Marc Dreier’s 20-year sentence last month for defrauding hedge funds of more than $400 million. Prosecutors sought 145 years for Dreier.
Assistant U.S. Attorney Michael Dry argued Okun’s fraud was worse than others, because his victims thought they were using a risk-free service, as opposed to investing. The tax-deferral industry temporarily holds real-estate sale proceeds for a fee under section 1031 of the U.S. tax code, allowing customers to defer taxes when similar properties are bought within 180 days.
As this Bloomberg report of the sentencing highlights, this proceeding appears to confirm again the accuracy of my Madoff sentencing reaction-prediction here that "though the choice of the magic sentencing number of 150 years — as opposed to 30 years or 50 years or 100 years — really means very little to Bernie Madoff, it could end up meaning a lot to the government and to some future defendants as a new white-collar sentencing benchmark."
Some recent related posts:
- Another big federal fraud sentencing dealing with Madoff echoes
- The "Bernie benchmark" already brought to bear in Dreier case
- Dreier gets 20-year federal prison sentence
- Madoff gets sentenced to max of 150 years in federal prison!
- A new white-collar benchmark: the main reason the number 150 matters in Madoff
The emerging jurisprudence over conditions of supervised release
In addition to noting yesterday's Third Circuit child porn sentencing ruling (discussed here), this article in today's Legal Intelligencer spotlights the emerging jurisprudence over supervised release conditions. The piece is headlined "3rd Circuit Upholds 10-Year Internet Ban in Child Porn Case," and here are excerpts:
[T]he decision in United States v. Thielemann is legally significant because it helps define a still emerging area of the law that trial judges have found perplexing: how far judges can go in crafting the "conditions of release" that restrict a criminal defendant's behavior in the period just after a prison term. In prior decisions, the 3rd U.S. Circuit Court of Appeals has overturned some restrictions as too harsh, such as a lifetime ban on using computers or barring a defendant from possessing all forms of pornography, including legal adult pornography.
But in the case of Thielemann, the 3rd Circuit concluded that the conduct was far worse and justified the harsh restrictions imposed by U.S. District Judge Sue Robinson because the evidence showed that Thielemann not only traded child pornography with nine other men, but also encouraged some of the men to engage in acts of child molestation and to share images of those acts on Web cams.
Senior U.S. Circuit Judge Leonard I. Garth concluded that Robinson hadn't violated Thielemann's First Amendment rights when she barred him from possessing any "sexually explicit" materials. "We hold that there is a significant nexus between restricting Thielemann from access to adult 'sexually explicit' material and the goals of supervised release, and that the restriction here is not overbroad or vague considering the content of the instant record," Garth wrote in an opinion joined by 3rd Circuit Judge Marjorie O. Rendell and visiting U.S. District Judge Thomas I. Vanaskie of the Middle District of Pennsylvania.
Garth also found that Robinson had properly tailored a restriction that bans Thielemann from accessing the Internet for 10 years after his release unless he gets permission from his probation officer. "Thielemann can own or use a personal computer as long as it is not connected to the Internet; thus he is allowed to use word processing programs and other benign software," Garth wrote. Garth found there were sharp contrasts between Thielemann's case and that of Daniel Voelker, whose lawyers successfully argued in June 2007 that the trial judge had gone too far in imposing a lifetime ban on using computers.
Some related posts on federal supervised release conditions:
- Are quirky supervised release conditions getting out of hand?
- Interesting Second Circuit ruling on supervised release conditions
Speculating on the next Nacchio prosecution twist and turn
As noted in this recent post, a unanimous Tenth Circuit panel late last week reversed the sentence imposed on former Qwest CEO Joe Nacchio following his conviction for insider trading. Though a lot more could (and surely will) be said about that opinion, here I want to speculate on what comes next for a case that has already gone through a number of notable twists and turns. Helpfully, these two recent Denver Post articles provide a basic primer on some of the coming possibilities:
The first article notes that further appellate review of the panel decision is possible: "The government has 14 days to ask the panel to reconsider or request a rehearing from the entire 10th Circuit, or both. It also can appeal the panel's decision to the Supreme Court." The second article spotlights some possible battles when this case gets back to the district court:
[T]he ruling from a three-judge panel of the 10th Circuit Court of Appeals may start another set of legal battles, including a renewed request to allow the imprisoned Nacchio to be free on bail while the sentence is sorted out....
If the government is not successful in challenging the panel's ruling, Nacchio's sentencing would start anew in U.S. District Court in Denver, likely meaning a fresh round of filings and hearings, said Peter Henning, a professor of law at Wayne State University. Experts could be asked to testify about the gain.
As white-collar crime fans may recall, Nacchio had won a reversal of his convictions in an initial Tenth Circuit panel decision that was later reversed by the full en banc Tenth Circuit. I doubt that the full circuit will be again eager to review this latest sentencing decision (and I would not be surprised if the Government does not even seek en banc or cert review).
The potential bail battle strikes me as especially interesting given that Nacchio has already served about four months in prison, but still seems relatively unlikely to get resentenced to much less than a few years even if his new sentencing judge — recall that District Judge Marcia Krieger took over over the Nacchio case after Edward Nottingham resigned last year — is sympathetic to his situation at resentencing. And, adding further complications to these matters, as the Denver Post notes, "Nacchio has a motion for a new trial pending before Krieger, contending that new evidence has surfaced. He also has asked the Supreme Court to review the case."
A pair of timely reports on state correction costs
I recently received this summary of two new reports on state correction costs via e-mail from the fine folks at the Pew Center on the States:
With state budgets in dire straits and corrections expenditures consuming one in 15 state general fund dollars, sentencing and prison policies are receiving special scrutiny. New publications from the Vera Institute of Justice and the National Conference of State Legislatures (NCSL), partners of the Public Safety Performance Project of the Pew Center on the States, describe several solutions that help to contain costs while preserving or improving public safety.
Vera’s report, The Fiscal Crisis in Corrections: Rethinking Policies and Practices, reviews enacted FY2010 corrections budgets and recent state legislation. It finds that 22 state departments of corrections (of 33 that had enacted state budgets at the time of printing) experienced budget reductions and details how they have absorbed the cuts. Common strategies include finding operating efficiencies, working to reduce the rate at which offenders return to prison, and accelerating the release of lower-risk inmates.
NCSL’s report, Cutting Corrections Costs: Earned Time Policies for State Prisoners, explores cost-cutting policies that speed release of inmates who complete programs and activities designed to increase their chances of success once they return to the community. NCSL’s statutory review describes the eligibility criteria and incentive structure for earned time policies in 31 states. It summarizes several research studies that find earned time policies can save substantial funds while maintaining or reducing recidivism rates. It also includes three brief Q&As with a leading policy analyst from Washington State, a Kansas legislator and Pennsylvania’s corrections director.
Together, the reports provide timely and detailed information on sentencing and corrections policies that can help states navigate the budget crunch.
August 3, 2009
AG Holder continues to talk about being "smart on crime" (and other important stuff)
Continue his stumping for new approaches to crime and punishment (see prior speeches noted here and here and here), Attorney General Eric Holder earlier today gave a keynote address to the ABA House of Delegates outlining the Department of Justice's latest vision and priorities for reform of the nation's criminal justice systems. Some of the speech reiterates points made by AG Holder in prior speeches, but there is some new stuff in this ABA speech (and some old stuff worth hearing again).
An audio recording of AG Holder's remarks can be found at this link and the full text is available here. The audio reveals ovations from the crowd during Holder's remark about improving indigent defense systems and DNA availability (and also a gentle dig at the outset about patent law). Here are a few sentencing-oriented highlights from the text:
By 2007, the nation’s violent crime rate had dropped by almost 40% from its peak in 1991. Few would dispute that the imprisonment of offenders has been at least partially responsible for this dramatic drop in crime rates. But just as everyone should agree that incarceration is — and will continue to be — part of the answer, everyone should also agree that it is not the whole answer. And so, we at the Department of Justice will continue to put the people who threaten our communities where they belong — behind bars. But we will also recognize that imprisonment alone is not a complete strategy for enforcing our nation’s criminal laws, and we will act on that fact.
We will not focus exclusively on incarceration as the most effective means of protecting public safety. For although spending on prison construction continues to increase, public safety is not continuing to improve. Crime rates appear to have reached a plateau beyond which they no longer decline in response to increases in incarceration. Indeed, since 2003, spending on incarceration has continued to rise, but crime rates have flattened.
But there is another reason to consider new law enforcement strategies: simple dollars and cents, and the principle of diminishing marginal returns. Every state in the Union is trying to trim budgets. States and localities are laying off teachers, cutting back on public health, and canceling after-school programs for our children. But in almost all cases, spending on prisons continues to rise. This is unsustainable economically. Many jurisdictions simply cannot afford the monetary costs of focusing exclusively on incarceration, to say nothing of the social costs associated with high rates of imprisonment.
So what can we do to lower the crime rate further, to make American communities safer, and to get smarter on crime? We need to add new tools and new strategies to our existing efforts to fight crime. One of these strategies is to look several steps past the point where we put people in prison, and to consider what happens to those people after they leave prison and reenter society....
Adapting our law enforcement strategies to get smart on crime is both necessary and possible — if we are willing to demand it. The challenges we face have evolved with time. But the opportunities available to us have changed too. We are able to compare the cost and suitability of different criminal justice strategies. We no longer must choose between more prisoners or more crime: we can reduce our dependence on incarceration and we can reduce crime rates. At the same time we can increase the integrity of our criminal justice system. We can harness science and data to tackle emerging problems and to preserve our foundational principles. The more we know, the better we can do, the more sophisticated we can be.
If all of us — judges, attorneys, law enforcement personnel, corrections officials, Justice Department lawyers, policymakers, and all Americans concerned with the cause of safe streets and equal justice — approach these challenges with open minds and determined action, there is no question that a smarter- and better- criminal justice system is within our grasp.
Now that Plaxico Burress has been formally indicted for gun possession, will Second Amendment fans come to his defense?
As detailed in this Bloomberg news piece and this official press release from the office of Manhattan District Attorney Robert Morgenthau, today former New York Giants receiver Plaxico Burress was indicted "on charges of possession of a loaded pistol and reckless endangerment in connection with an incident in which he shot himself in the leg at a Manhattan nightclub." Here are more sentencing details from the Bloomberg report:
After shooting himself, Burress was initially charged with two counts of possession of an unlicensed handgun. His trial was delayed until Sept. 23 when Morgenthau decided to present the evidence to the grand jury. Morgenthau told the New York Post on July 27 that Burress agreed to serve a year in jail and that prosecutors insisted on two.
If convicted, Burress faces from 3-1/2 years to 15 years in prison for each gun count. The maximum prison sentence for reckless endangerment is one year, according to Morgenthau. He will be arraigned in New York state court. No date is scheduled.
As I have highlighted in some prior posts, I think anyone seriously and deeply committed to enforceable invidivudal right to possess a gun for self-protection ought to be greatly troubled by both the decision to criminally prosecute Burress and by the considerable prison terms being threatened in this case. Though a few Second Amendment fans have previously express some concern for Plaxico's plight, I will be interested to see if more start coming to his defense now that he has been formally indicted.
Some related posts on the Burress cases:
- "Main Threat to Burress Is a Sentencing Law"
- Starting to make the Second Amendment case for Plaxico Buress
- Interesting data on the application of NY gun law for Plaxico's consideration
- Talk of a plea deal to resolve gun charges against Plaxico Burress
- Lawyer for Plaxico Burress making much of sweet plea deal given to other NFL receiver
"The Real Murder Mystery? It’s the Low Crime Rate"
The title of this post is the headline of this great article from the weekend's Week in Review in the New York Times. Here are just a few snippets from a great read:
Maybe it is time to call in one of those clairvoyants who help detectives solve the case. Because no one else can explain what criminals have been doing in the first half of 2009....
No single lens — sociological, econometrical, liberal or conservative — seems an adequate one through which to view crime. The economy, which seems as if it should be fundamental, has never been a good predictor; the Prohibition era was far more violent than the Great Depression. Adding prison beds has not helped; the incarceration rate has marched grimly upward for decades, while the crime rate has zigzagged up and down, seemingly oblivious. Years ago, criminologists thought demographics explained a lot — remember the warnings about thousands of cold-blooded, teenage “superpredators” in the mid-1990s? — but demographics cannot shed light on what is happening now. Improved policing deserves credit for bigger declines in certain cities, but not the overall national trend....
The search for a silver bullet — a single factor that could explain the steady drop in crime since the mid-1990s — has taken theorists far afield. There is the abortion theory, which proposes that legalized abortion reduced the number of unwanted children who turned to a life of crime. It’s a seductive explanation for United States data, but it does not bear out in other countries that legalized abortion in the 1970s, said Franklin E. Zimring, a law professor at the University of California at Berkeley. There is the gun theory, which posits that expanded gun ownership rights have deterred criminals who now must consider whether their victims are armed. But that does not explain the most significant decline in the country, in New York City, where gun ownership is low, said Mr. Zimring, who dedicated part of his book, “The Great American Crime Decline,” to debunking such theories. (Despite writing that exhaustive volume, Professor Zimring admits that for criminologists, “the score is Know: 2; Don’t Know: 8.”)...
One reason for the lack of answers is lack of money, said Alfred Blumstein, a prominent criminologist at Carnegie Mellon University in Pittsburgh. “The National Institutes of Health spends $400 million a year on dental research,” he said. “The National Institute of Justice spends $50 million a year on criminal justice research.” Perhaps as a result, police departments and prosecutors can be swayed by fads, spending millions on programs like Drug Abuse Resistance Education, or D.A.R.E., which came under fire from critics who said it lacked a proven success record (it later changed its strategy). “Police research is to research like military music is to music,” Mr. Krisberg said. “It has never matured to be a very sophisticated science.”...
While the decline may not have taken hold in the minds of the public, it has undermined a cherished belief, particularly among liberals, in root causes — that criminals are born of misery and the limited options of poverty. “There are people that are putting up with an awful lot of suffering, and they’re not complaining all that much,” said Andrew Karmen, a criminologist at the John Jay College of Criminal Justice in New York.
But the fact that so few forces have a demonstrable effect on crime can be viewed, in a twisted kind of way, as good news. The decline, Mr. Zimring said, has shown that it isn’t necessary to accomplish major feats, like improving education or raising wages, or punitive ones, like increasing prison sentences, to bring crime down. Smart policing can have an effect. “Crime isn’t an essential part of cities as we know them,” Mr. Zimring said. Instead, it is a mystery with a direction all its own, one that may be beyond the reach of public policy. Which is easier to tolerate when that direction is down.
Third Circuit upholds stat max sentence and special restriction in child porn case
The Third Circuit, which has issued a number of notable child porn rulings in recent times (see here and here), has another such ruling today in US v. Thielemann, No. 08-2335 (3d Cir. Aug. 3, 2009) (available here). Here is how the panel opinion starts:
The defendant, Paul Thielemann, was indicted and pleaded guilty to one count of receiving child pornography. He was sentenced to the statutory maximum of 240 months of imprisonment, plus 10 years of supervised release subject to a number of conditions, including two Special Conditions of Supervision.
Thielemann appeals his prison sentence because the District Court considered non-charged relevant conduct in fashioning his sentence. Thielemann also challenges the two Special Conditions of Supervised Release imposed by the District Court. These conditions restricted Thielemann’s computer use and his viewing of sexually explicit material.
We reject Thielemann’s arguments concerning his relevant conduct and we conclude that both Special Conditions of Supervised Release must be upheld. In particular, we hold that restricting Thielemann’s possession and viewing of sexually explicit material, as defined in 18 U.S.C. § 2256(2)(A), does not violate the Constitution. Accordingly, we will affirm the District Court’s judgment and sentence of April 30, 2008.
Judge Posner talks through some post-Kimbrough concerns for the Seventh Circuit
The Seventh Circuit has this intriguing little opinion today which purports "to flag a growing problem created by the Booker decision, which in the name of the Sixth Amendment demoted the federal sentencing guidelines to advisory status." The ruling in US v. Aguilar-Huerta, No. 08-2505 (7th Cir. Aug. 3, 2009) (available here), comes from the pen of Judge Posner, and here are a few snippets (with cites omitted and the emphasis from the original):
A sentencing judge is free, as we said, to reject a guideline as inconsistent with his own penal theories; and rejecting a guideline as lacking a basis in data, experience, or expertise would thus be proper. But we do not think a judge is required to consider, not a nonfrivolous argument that a guideline produces an unsound sentence in the particular circumstances of the case, but an argument that a guideline is unworthy of application in any case because it was promulgated without adequate deliberation. He should not have to delve into the history of a guideline so that he can satisfy himself that the process that produced it was adequate to produce a good guideline. For if he is required to do that, sentencing hearings will become unmanageable, as the focus shifts from the defendant’s conduct to the “legislative” history of the guidelines.
Moreover, while if a defendant makes a nonfrivolous argument that a guideline is invalid the judge should consider the argument, there is no harm done if he doesn’t consider it because the defendant can renew the argument on appeal; validity issues are issues of law.
What does Sarah Palin think about Heller's limits on Second Amendment right?
According to this CNN item, Sarah Palin addressed a National Rifle Association dinner in Anchorage on Saturday and gave “a stirring speech on 2nd Amendment rights.” Though I doubt former Gov. Palin gave lots of attention to the Second Amendment sentencing issues about which I often blog, I cannot help but enjoy speculating that she decided to quit being governor so that she could join me as one of the few (but growing?) active and vocal critics of the unspecified and unjustified (and unjustifiable?) extreme limits on Second Amendment rights that appear in Heller.
Some related Second Amendment posts:
- Heller's impact on felon-in-possession crimes finally starting to generate attention
- First(?) significant(?) Second Amendment ruling favoring a federal criminal defendant
- 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
- 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?"
- Is anyone (other than me) discussing the apparent insignificance of Heller?
- "The New Second Amendment: A Bark Worse Than Its Right"
- What might 2009 have in store for . . . Second Amendment jurisprudence?
Kenya's leader commutes all death sentences
This new AP article, headlined "Kenyan leader reduces all death sentences to life," details an intriguing international death penalty development:
Kenya's president says all prisoners on death row will immediately have their sentences commuted to life imprisonment.
President Mwai Kibaki said in a statement Monday he made the decision because no death sentence has been carried out in the past 22 years, leading to more than 4,000 prisoners on death row. The president says he has directed government officials to study whether the death penalty has any impact on fighting crime.
Snarky aside (which I fear will prompt off-topic comments): Do we need to worry that the "birthers" and Lou Dobbs might suggest this news provides reason to believe that President Obama was really born in Kenya?
SCOTUS Ice ruling undercuts Ohio defendant's habeas claim
The Sixth Circuit issued an intriguing little habeas ruling today in Evans v. Hudson, No. 08-3717 (6th Cir. Aug. 3, 2009) (available here). Here is how it starts:
Respondent-Appellant Stuart Hudson (“Hudson”), the warden of Mansfield Correctional Institution, appeals the district court’s grant of a conditional writ of habeas corpus to Petitioner-Appellee Glen Evans (“Evans”), requiring the state of Ohio to resentence Evans within 90 days or release him. Hudson contends that the district court erred in concluding that Evans received ineffective assistance of appellate counsel because appellate counsel failed to raise, during Evans’s direct appeal, a claim under Blakely v. Washington, 542 U.S. 296 (2004), regarding Evans’s sentence to consecutive terms of imprisonment. For the reasons discussed below involving the Supreme Court’s recent decision in Oregon v. Ice, — U.S. —, 129 S. Ct. 711 (2009), we REVERSE the district court’s grant of habeas relief.
Japan's revival of jury trials to include jury sentencing
Fans of Blakely and jury involvement in criminal justice administration should be interested in this international news report, which is headlined "Japan holds 1st criminal jury trial since WWII." In addition to discussing Japan's decision to start having jury trials, the report details that the first such trial came after a guilty plea so that the very first jury's role is all about making a sentencing judgment rather than doing basic guilt fact-finding. Here are the interesting details:
Japan opened its first jury trial since World War II on Monday under a major overhaul of a legal system that has often been criticized as unfair and arduous. Six jurors are working with three judges to hand down a verdict for 72-year-old Katsuyoshi Fujii, who has been charged with murder in the fatal stabbing of a 66-year-old neighbor in May....
Japan launched a jury trial system in 1928, but dropped it in 1943 as the country headed into chaos with World War II. The system was never popular because legal professionals opposed allowing regular people as jurors, and defendants had to pay legal fees....
Fujii's lawyers say he is pleading guilty but that they are asking for leniency in sentencing because he has expressed remorse. Murder carries a maximum penalty of death in Japan, although it's unlikely in a case involving one victim.
The son of the victim is expected to take the stand to plead with the jurors, according to the court. His mother was stabbed to death, allegedly after a quarrel, the court said. "This is a historic trial, and I feel I must do my best to be up to the job," prosecutor Tetsuo Maeda told reporters on NKH TV news, as he headed into the courtroom, where jury selection started in the morning.
Japan is set to hear about 2,000 to 3,000 jury trials per year, all involving serious crimes such as murder and kidnapping. About 300,000 candidates are being randomly selected from eligible voters nationwide annually to serve jury duty each year.
Since 2004, when the nation decided on the new jury system, legal experts have held seminars to make trials easier to understand and have held about 300 mock trials. Some people are still reluctant to serve on a jury. "It is such a heavy responsibility to cast judgment on other people," said Tomoe Obata, a 49-year-old office worker, who attended a mock trial earlier this year. "What if I'm assigned to a murder case and we are asked to consider the death penalty?"
With the arrival of a jury trial, Japanese will have a chance to play a bigger role in doling out justice, Bar Association President Makoto Miyazaki said in a recent interview with The Associated Press. "A more transparent and fair criminal justice system serves everyone's interests," he said.
As I discussed in my recent Sidebar commentary for the Columbia Law Review, I think anyone seriously committed to the conceptual and constitutional principles behind the Apprendi-Blakely line of cases ought to favor greater jury involvement in both capital and noncapital sentencing proceedings. Though the particulars of Japan's new system are unclear, it will be quite ironic if the country's new jury trial program means the Japanese people end up having a lot more say in typical sentencing outcomes than do modern American jurors (outside the capital context).