August 11, 2009
DOJ not to appeal Tenth Circuit sentencing ruling in Nacchio case
In posts here and here discussing the Tenth Circuit panel's important ruling that reversed the sentence imposed on former Qwest CEO Joe Nacchio following his conviction for insider trading, I suggested that the Justice Department might not even bother to seek en banc or SCOTUS review of the panel work. Thus, I was not too surprised by this new post, headlined "Analysis: New approach to 'insider' gains," by Lyle Denniston at SCOTUSblog. Here are the basics:
A major dispute over how severely to punish a corporate “insider” who makes gains from tradmg in the company’s stock with information other investors don’t have seemed a likely bet for Supreme Court review. But that won’t happen now: the Justice Department has decided not to test the question further, after losing on it recently in the Tenth Circuit Court....
In general, the Circuit panel adopted a variation of the so-called “market absorption theory,” as applied directly to “insider” trading. Simply put, this theory suggests that, if an “insider” trades on private information about the company, the gain made from the transactions will be reduced if there is evidence that — once all investors had access to that information — the market absorbed it, so that any gain beyond that point for the “insider” would be due to market activity, not the continuing effect of the illegal trading.
Only two federal appeals courts have ruled on that theory. The Eighth Circuit rejected it in its 2005 divided en banc decision in U.S. v. Mooney. Embracing the views of the Eighth Circuit dissenters, and creating a direct conflct, the Tenth Circuit embraced the theory. That conflict increased the prospect that the Supreme Court could take up the issue. But, the Justice Department will not test it in the Nacchio case, either by seeking Circuit en banc review or by filing a Supreme Court petition. “We will not be seeking further review,” a Department spokesperson, Beverley Lumpkin, said on Tuesday in response to a query.
Timely reflections on sentencing retroactivity
As Congress considers reducing crack sentences and state work on reducing their prison population, the retroactive application of new sentencing rules that reduce sentences is an especially important issue these days. Consequently, I was pleased to see this timely new piece on SSRN by S. David Mitchell, titled "In With the New, Out With the Old: Expanding the Scope of Retroactive Amelioration." Here is the abstract:
The legislative decision to amend a statute and reduce a sentence but not to apply it retroactively to pending prosecutions or to finalized convictions is in accord with the principles of retroactivity, but contrary to legitimate goals of punishment, i.e. deterrence and retributivism. Genarlow Wilson, convicted at seventeen of aggravated child molestation, a felony, for consensual oral sex with a fifteen-year old classmate, was sentenced to a mandatory minimum of ten years. While his appeal was pending, the Georgia Legislature reclassified the conduct as a misdemeanor and reduced the sentence to a maximum of one year but decided not to apply the changes retroactively to him. I use the Genarlow Wilson case as a backdrop to examine the denial of the retroactive application of ameliorative sentencing changes that is manifested through the use of a legislative device known as the express saving clause or a general saving statute.
Currently, in the majority, ameliorative sentencing changes are applied retroactively provided there is a clear expression of legislative intent. Dissatisfied with this approach, a minority of jurisdictions engage in retroactive amelioration routinely either judicially or legislatively. While the courts in these jurisdictions apply ameliorative changes retroactively despite the existence of a general saving statute in contravention of the rules of statutory construction thus bordering on what some may label as judicial activism, the legislatures have created an ameliorative amendment exception to the general saving statute. Each applies ameliorative sentencing changes retroactively but restricts the application of such changes to circumstances in which there is neither an express saving clause nor has final judgment been determined. In my proposed retroactive amelioration statute, I advocate for ameliorative sentencing changes to be applied to pre-final judgment defendants adopting the current minority legislative practice and to those with finalized convictions through an administrative sentence readjustment process.
The Economist assails US sex offender laws
The August 6th issue of The Economist includes these two pieces concerning US sex offender laws and policies:
As these headlines suggest, these articles are mostly critical and their main focus is sex offender registration rules. Here is a snippet from the first piece linked above:
Every American state keeps a register of sex offenders. California has had one since 1947, but most states started theirs in the 1990s. Many people assume that anyone listed on a sex-offender registry must be a rapist or a child molester. But most states spread the net much more widely. A report by Sarah Tofte of Human Rights Watch, a pressure group, found that at least five states required men to register if they were caught visiting prostitutes. At least 13 required it for urinating in public (in two of which, only if a child was present). No fewer than 29 states required registration for teenagers who had consensual sex with another teenager. And 32 states registered flashers and streakers.
Because so many offences require registration, the number of registered sex offenders in America has exploded. As of December last year, there were 674,000 of them, according to the National Centre for Missing and Exploited Children. If they were all crammed into a single state, it would be more populous than Wyoming, Vermont or North Dakota. As a share of its population, America registers more than four times as many people as Britain, which is unusually harsh on sex offenders. America’s registers keep swelling, not least because in 17 states, registration is for life.
August 10, 2009
Is SCOTUS partially to blame for rioting in a California prison?
Just when it might seem things could not get any worse for California's over-crowded and politically dysfunction prison system, a massive riot breaks out. And, as this New York Times coverage of the riot reveals, it might be appropriate to blame a Supreme Court ruling for helping to create the conditions in which this riot broke out:
Rioting inmates smashed and burned a large California prison on Saturday night and Sunday morning, injuring 250 prisoners and hospitalizing 55. The 11-hour riot, at the Reception Center West at the California Institution for Men in Chino, about 40 miles east of Los Angeles, broke down along racial lines, with black prison gangs fighting Latino gangs in hand-to-hand combat, the authorities said.
No prison employees were injured, no deaths were reported, and no inmates escaped, state officials said. But 10 of the 33 prisons in the state system were put on lockdown to prevent unrest from spreading. Those 10 were in the southern part of the state.
Damage to the 1,300-inmate medium-security prison was “significant and extensive,” said a spokesman, Lt. Mark Hargrove. One housing unit was virtually destroyed by fire, Lieutenant Hargrove said. The other housing areas were so badly damaged that they were uninhabitable, he said, so some inmates were being temporarily housed in tents while others were sent to alternate prisons.
With more than 150,000 inmates, the California prison system is one of the most crowded in the nation, with many of its facilities holding more than double the number of inmates they were designed for. A federal three-judge panel ruled last week that crowding and poor health care caused one avoidable inmate death each week and that the system was “impossible to manage.”...
The Chino prison is trying to put into effect a 2005 Supreme Court decision that prohibits automatic and systematic racial segregation of prison inmates after more than three decades of racial separation in the corrections system. Lieutenant Hargrove said that inmates could now opt out of segregation and that a growing number of black, Latino and white prisoners shared cells, increasing racial tensions in the prison....
In its order last week, the federal panel directed the state to come up with a plan to reduce its prison population by 40,000 inmates within two years. Attorney General Jerry Brown, a possible candidate for governor next year, said he would probably appeal the ruling.
Barry Krisberg, the president of the National Council on Crime and Delinquency in Oakland, said the riot illustrated the many problems plaguing the state prison system, including growing cost overruns and pending cuts. “There are proposals to eliminate all programs including reducing visiting days for inmates participating in programs,” Mr. Krisberg said. “But if you isolate these men from their families and cut down even the most basic educational and counseling programs, you’re going to create more idleness, and this is what happens.”
"Judge sentences man to 6 months in jail for yawning"
The title of this post is te headline of this article from the Chicago Tribune. Here are the basic details from the start of the artice:
Clifton Williams arrived at the Will County Courthouse in Joliet and sat in the fourth-floor courtroom where his cousin was pleading guilty to a felony drug charge. As Circuit Judge Daniel Rozak handed down the cousin's sentence -- 2 years' probation -- Williams, 33, stretched and let out a very ill-timed yawn.
Williams' sentence? Six months in jail -- the maximum penalty for criminal contempt without a jury trial. The Richton Park man was locked up July 23 and will serve at least 21 days. "I was flabbergasted because I didn't realize a judge could do that," said Williams' father, Clifton Williams Sr. "It seems to me like a yawn is an involuntary action."
Chuck Pelkie, a spokesman for the state's attorney's office, said the prosecutor in the courtroom that day told him that "it was not a simple yawn -- it was a loud and boisterous attempt to disrupt the proceedings." Jason Mayfield, the cousin of Williams who was pleading guilty at the time, said it was "not an outrageous yawn."
A Tribune review of a decade's worth of contempt-of-court charges reveals that Rozak jails people -- typically spectators whose cell phones go off or who scream or shout profanity during sentencing -- at a far higher rate than any other judge in the county. There are now 30 judges in the 12th Judicial Circuit, but since 1999, Rozak has brought more than a third of all the contempt charges, records show.
Public defender complaining about increased pace of Ohio executions
This new item from the Cleveland Plain Dealer, which is titled "Executions are coming too fast, Ohio Public Defender Tim Young says," spotlights some of the complains and concerns emerging as Ohio becomes the north's Texas:
The state of Ohio is lining up death-row inmates for execution at a feverish pace not seen here since capital punishment was reinstated a decade ago. Having already carried out three executions since June, the state has scheduled at least one lethal injection every month through the end of the year. That could mean that by year's end, Ohio will have executed eight men in the final seven months of 2009. The previous high was seven in all of 2004.
They are coming too fast, argues Ohio Public Defender Tim Young, who worries that the burdens on state officials to carry out the tasks in rapid-fire succession could lead to careless mistakes. "This should never become ordinary, it should never become run-of-the-mill, it should never be a normal happening like the turning of a calendar page," Young said....
Attorney General Richard Cordray said he couldn't help but notice the stepped-up rate of executions and the burden that could pose on the system and families. But his office is prepared, he said. "We can handle whatever they do with us," Cordray said.
So many condemned inmates are coming up at once because of a backlog of cases resulting from a pair of U.S. Supreme Court cases since 2007 that separately led to de facto moratoriums on lethal injections across the country. Also, Ohio's death row -- with 168 men and one woman -- is chock full of inmates who were sentenced in the 1980s and early 1990s, before life without parole was a sentencing option. Many are now running out of appeal options.
Some recent related posts:
- "A new Texas? Ohio's death penalty examined"
- Ohio — aka the Texas of the north — setting busy execution schedule
- Ohio — aka the northern Texas — executes again
"Mentally Ill Offenders Strain Juvenile System"
The title of this post is the headline of this article in this morning's New York Times, which provides still more evidence that crime and criminal offenders often are a reflection of public health problems. Here is a snippet:
As cash-starved states slash mental health programs in communities and schools, they are increasingly relying on the juvenile corrections system to handle a generation of young offenders with psychiatric disorders. About two-thirds of the nation’s juvenile inmates — who numbered 92,854 in 2006, down from 107,000 in 1999 — have at least one mental illness, according to surveys of youth prisons, and are more in need of therapy than punishment.
“We’re seeing more and more mentally ill kids who couldn’t find community programs that were intensive enough to treat them,” said Joseph Penn, a child psychiatrist at the Texas Youth Commission. “Jails and juvenile justice facilities are the new asylums.”
At least 32 states cut their community mental health programs by an average of 5 percent this year and plan to double those budget reductions by 2010, according to a recent survey of state mental health offices.
Juvenile prisons have been the caretaker of last resort for troubled children since the 1980s, but mental health experts say the system is in crisis, facing a soaring number of inmates reliant on multiple — and powerful — psychotropic drugs and a shortage of therapists.
In California’s state system, one of the most violent and poorly managed juvenile systems in the country, according to federal investigators, three dozen youth offenders seriously injured themselves or attempted suicide in the last year — a sign, state juvenile justice experts say, of neglect and poor safety protocols.
In Ohio, where Gov. Ted Strickland, a former prison psychologist, approved a 34 percent reduction in community-based mental health services to reduce a budget deficit, Thomas J. Stickrath, the director of the Department of Youth Services, said continuing cuts would swell his youth offender population. “I’m hearing from a lot of judges saying, ‘I’m sorry I’m sending so-and-so to you, but at least I know that he’ll get the treatment he can’t get in his community,’ ” Mr. Stickrath said.
But youths are often subjected to neglect and violence in juvenile prisons, and studies show that mental illnesses can become worse there.
Kentucky looking to reduce prison costs to avoid educational cuts
Telling a story that I suspect is familiar in the majority of states, this local article from Kentucky, headlined "State looks at prison spending," highlights that state leaders are coming to see that surging prison costs risk drawing funds away from other important state funding priorities:
State lawmakers are looking at options for the General Assembly to consider during its 2010 legislative session intended to curb the state's soaring prison population and free up cash for other productive expenses — such as education.
As Kentucky's budget funds become increasingly scarce, lawmakers are looking to free up money to spend elsewhere. Lawmakers have been considering options to shrink, or at least slow, Kentucky's prison population. It's a persistent problem, without easy answers.
"The current rate of growth of putting people in prison in Kentucky is not sustainable," Kentucky Chamber of Commerce President Dave Adkisson told a legislative panel on the judiciary last week. "The potential solutions are not about being soft on crime, but are about rethinking how we deal with offenders in a way that lowers the cost."...
Kentucky has about 22,000 inmates. Last year's corrections budget was about $457 million. That's a fairly large chunk of money to some, considering the state budget is about $9.4 billion a year.
Adkisson said money for prisons, and money for Medicaid and public employee health insurance, is changing Kentucky's priorities and shifting its focus away from education. Instead, Adkisson said, the state should consider an expansion of Kentucky drug courts, possible privatization of prisons and a change in persistent felony offender laws that require mandatory sentences.
"The state is consciously or unconsciously shifting its priorities away from education toward some of these things that are driving the state budget," Adkisson said. "Kentucky is spending more to address the cost of failing to invest in education than it is on students."
The Kentucky Criminal Justice Council last year offered the legislature a report filled with recommendations on how the state might reduce its prison population while maintaining public safety. Among other things, the report said the state might change some of its drug laws to reduce penalties. It also recommended making possession of less than a gram of cocaine a misdemeanor instead of a felony and raising the felony theft threshold from $300 to $500. Lawmakers earlier this year responded by approving legislation that would offer first time non-violent drug offenders a diversion program that would offer long-term treatment.
It is both significant and telling that these statements about the need for Kentucky to put more money into education and less into imprisonment are coming, not from traditional liberal public policy groups, but from he president of the state's Chamber of Commerce. Slowly but surely, more people outside of traditional criminal justice arenas are coming to understand that modern mass incarceration is a very costly enterprise that has many problematic ripple effects throughout all of society.
Some recent related posts about the realities of the prison economy:
- Will we invest in classrooms or cells in these tough times?
- A pair of timely reports on state correction costs
- "The Fiscal Crisis in Corrections: Rethinking Policies and Practices"
- Reviewing how tough times are resulting in prison releases
- "Prison spending still shackles state budget"
- The state of cost problems in the states of prison nation
- "To Cut Costs, States Relax Prison Policies"
- "Shrinking State Budgets May Spring Some Inmates"
- "Ohio lawmakers mull sweeping reform to cut prison populations"
- Notable report on the impact of the prison economy in the Sunshine State
- "Low-level felons add millions to spending"
- "Tough sentencing harder on budgets than on crime"
August 9, 2009
Detailing the extreme toughness of juvenile justice in Florida
The constitutionality of the extreme toughness of juvenile justice in two paricular Florida cases will be before the Supreme Court in the Graham and Sullivan cases to be argued in the fall. In the meantime, this front-page article from the Sarasota Herald-Tribune, which is headlined "Florida justice: Tough on youths," provides more details on just how tough the Sunshine State is on young offenders. Here are snippets from the piece:
Records show that Florida has handed out more life sentences to juveniles for non-murder crimes than have all other states combined. Florida's sentencing raises questions about cruelty as well as concerns about racial bias. While blacks represent about 16 percent of Florida's population, and about half its prison population, 84 percent of juveniles sentenced to life without parole for non-homicide offenses were African-American.
Florida has sentenced 77 young men to spend their lives in prison, without any chance of release, based on non-homicide crimes they committed when they were 17 years old or younger, according to a preliminary study by Florida State University researchers. Six of those prisoners were 13 or 14 at the time of their crimes.
A Herald-Tribune review of state records shows that some juveniles were given life without parole for as few as one or two convictions of non-homicide crimes. Florida's stance has generated protests from human rights groups and a lawsuit heading to the U.S. Supreme Court, which contends such sentences violate the Constitution's ban on cruel and unusual punishment.
But the state shows little sign of stopping judges from imposing life sentences on juveniles or providing a path to freedom for those already in prison. Lawmakers rejected a bill last spring that would have allowed juveniles in some non-homicide cases to eventually become eligible for parole.
The controversy in Florida stands out because it differs so greatly from policies elsewhere. Florida prisoners represent 69 percent of the 111 inmates reported nationally to be serving life without parole for their non-homicide juvenile crimes. Thirty-six states have no non-homicide juvenile lifers.
Reviewing the modern persistence of persistence of sentencing guidelines
This new piece appearing on SSRN, which is titled "Guidelines as Guidelines: Lessons from the History of Sentencing Reform," ensured itself a mention on this blog by mentioning this blog in its abstract. But, as the abstract for this piece suggests, there are other reasons why the piece is recommended reading:
Over the last thirty years, sentencing guidelines have become an increasingly prominent feature of the American criminal justice system. Between the Supreme Court’s Apprendi-Blakely-Booker line of cases, dedicated law reviews like the Federal Sentencing Reporter, multitudinous other law review pieces, and Doug Berman’s famous sentencing blog, a great deal of ink has been spilled discussing the contours and future of guidelines reform. Most of this scholarship, however, falls in one of two camps. In one camp are scholars who chronicle the history of sentencing guidelines in particular states. In the other are scholars who discuss guidelines as a national phenomenon, but mostly with an eye to exposing the flaws in the federal system, or offering suggestions for future reformers. Most scholars in the latter camp use the states as foils for the federal system, and chronicle the former as a success story and the latter as a failure.
This Note is different. It has one essential goal: offering an explanation for the persistence of sentencing guidelines in American jurisprudence at large. As some scholars have noted, state guidelines survived and thrived in the face of Blakely. At the same time, the federal guidelines still govern the outcome in around 85% of criminal cases, despite being panned as a failure and rendered purely advisory by the Supreme Court. This Note attempts to account for this persistence by offering a somewhat abstract “model” for guidelines resilience. In particular, this Note draws upon the states’ experience to argue that guidelines are most successful when they represent a diversely composed commission’s collaborative effort to administer and regulate criminal sentencing rather than revise substantive criminal law. Yet this Note also accounts for the federal experience as well. It argues that when guidelines reform ambitiously attempts to do more — when the guidelines embody a new, draconian criminal code intended dramatically to alter sentencing practice, and the commission acts “legislatively” in defining and ranking crimes — such reform prompts eventual opposition and evasion, and ultimately some form of external moderation is a necessary precondition for continued survival. I argue that for the federal system, Booker served that role. I conclude by exploring what this history may mean for the future.
This model — part historical and part theoretical — is by no means perfect. But it represents an important first step in synthesizing the history of guidelines reform — a step that may well prove helpful for future sentencing reformers.
"Myths About High Times in America"
The title of this post is the headline of this interesting piece in the Washington Post by Ryan Grim, who is also the author of "This Is Your Country On Drugs: The Secret History of Getting High in America." Here are two parts of the piece I found especially interesting:
Myth 3. Legalization will increase teen drug use. But the children! Californians fretted loudly in 1996 that the state's new medical marijuana law would lead to an increase in teen pot-smoking, so the state studied it closely. The attorney general's first look a year later found no effect. The office looked again a decade later. Teen use had collapsed. Among seventh- and 11th-graders, the number of kids saying they'd smoked in the last month fell by a quarter; among ninth-graders, it fell by 47 percent. Bigger declines were found in weekly and annual use. In almost every other state that passed a medical marijuana law, pot-smoking among children declined faster than in states that didn't.
Myth 4. In foreign countries, legalization has been disastrous. First, no country has ever completely legalized drugs, not since global treaties were signed a century ago ushering in prohibition. In Holland, drug laws are still on the books, but a social pact between the government and the people keeps shops from getting busted.
Portugal became the first European country to abolish drug laws when it repealed criminal penalties for pot, cocaine, heroin and methamphetamine in 2001. The world freaked: The United Nations suggested that the new law could be a treaty violation and would lead to crime, a spike in addiction and a rise in "drug tourism." But the country didn't fully legalize. People caught with drugs still had to go to a magistrate and face a small penalty. But they wouldn't go to jail.
Now the United Nations is lauding Portugal. In its most recent World Drug Report, it says, "These conditions keep drugs out of the hands of those who would avoid them under a system of full prohibition, while encouraging treatment, rather than incarceration, for users." The report also noted that the policy had not led to an increase in drug tourism and that "a number of drug-related problems have decreased."
A crack-transition question from a public defender
I received via e-mail this inquiry from a public defender, which I was authorized to put up on the blog:
Given that H.R. 3245 is pending in the House and given that — according to F.A.M.M. — it will eliminate the crack/powder disparity completely if passed, I would like to know if attorneys in various federal districts have been able to continue sentencing hearings in crack cases until we know what will become of HR 3245? Or is there some other creative crack sentencing strategy being employed in light of H.R. 3245?
Though this question does not directly focus on the issue of whether crack sentencing reform by Congress will be made retroactive, it does provide an effective reminder of all the transition issues and challenges posed by proposed sentencing reforms even before they become law.
Governor Kaine grants conditional pardon to three of the "Norfolk Four"
This Washington Post article, headlined "3 of 'Norfolk 4' Conditionally Pardoned in Rape, Killing," provides the details on a notable state pardon grant issued in a high-profile case out of Virginia. Here is how the article starts:
Three members of the "Norfolk 4" -- sailors serving life in prison for a 1997 rape and murder -- should walk free by Friday after Virginia Gov. Timothy M. Kaine granted them conditional pardons Thursday for crimes to which they all had confessed.
The pardons of Danial Williams, 37; Derek Tice, 39; and Joseph Dick, 33, culminated a four-year campaign for clemency based on the sailors' claims that they were coerced into falsely admitting their involvement, that the details they provided were wrong and that there was no physical evidence linking them to the crime. A fourth sailor, Eric Wilson, 33, served more than eight years in prison and has been released. He was not pardoned.
Kaine (D) said he was simply reducing the remaining three sailors' sentences to time served and not declaring their innocence. Kaine said he decided that the men "have not conclusively established their innocence and therefore that an absolute pardon is not appropriate."
While the case against the sailors was pending in 1999, another man confessed to the slaying, and his DNA matched the genetic evidence left at the scene. He later pleaded guilty, was sentenced to life in prison and said he acted alone. But Norfolk police and prosecutors continued to press their case against the four sailors and obtained guilty pleas or convictions for each of them.
The men were convicted in the slaying of Michelle Moore-Bosko, 18, of Pittsburgh, who had recently moved to Norfolk and secretly married her longtime boyfriend, William Bosko. Her parents, Jack and Carol Moore, were adamantly opposed to clemency and, after listening to the defendants' confessions, continue to think they are guilty.
Pardon Power has a lot more on Governor Kaine's clemency action and reactions thereto.