August 29, 2009
North Carolina Supreme Court finds state constitutional right for some felons to bear arms
Thanks to this post at The Volokh Conspiracy, which is titled "Felons and the Right To Bear Arms," I discovered that late yesterday the North Carolina Supreme Court ruling in Britt v. State, No. 488A07 (NC Aug. 28, 2009) (available here), that at least North Carolina felons have a state constitutional right to bear arms under the North Carolina Constitution. Here are a few key passages from the notable (and very important?) ruling:
Article I, Section 30 of the North Carolina Constitution provides, in pertinent part: “A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.” This Court has held that regulation of the right to bear arms is a proper exercise of the General Assembly’s police power, but that any regulation must be at least “reasonable and not prohibitive, and must bear a fair relation to the preservation of the public peace and safety.”...
Plaintiff pleaded guilty to one felony count of possession with intent to sell and deliver a controlled substance in 1979. The State does not argue that any aspect of plaintiff’s crime involved violence or the threat of violence. Plaintiff completed his sentence without incident in 1982. Plaintiff’s right to possess firearms was restored in 1987. No evidence has been presented which would indicate that plaintiff is dangerous or has ever misused firearms, either before his crime or in the seventeen years between restoration of his rights and adoption of N.C.G.S. § 14-415.1’s complete ban on any possession of a firearm by him....
Plaintiff, through his uncontested lifelong nonviolence towards other citizens, his thirty years of lawabiding conduct since his crime, his seventeen years of responsible, lawful firearm possession between 1987 and 2004, and his assiduous and proactive compliance with the 2004 amendment, has affirmatively demonstrated that he is not among the class of citizens who pose a threat to public peace and safety....
Based on the facts of plaintiff’s crime, his long post-conviction history of respect for the law, the absence of any evidence of violence by plaintiff, and the lack of any exception or possible relief from the statute’s operation, as applied to plaintiff, the 2004 version of N.C.G.S. § 14-451.1 is an unreasonable regulation, not fairly related to the preservation of public peace and safety. In particular, it is unreasonable to assert that a nonviolent citizen who has responsibly, safely, and legally owned and used firearms for seventeen years is in reality so dangerous that any possession at all of a firearm would pose a significant threat to public safety. We conclude that N.C.G.S. § 14-415.1 is an unconstitutional violation of Article I, Section 30 of the North Carolina Constitution as applied to this plaintiff. As discussed above, pursuant to N.C.G.S. § 14-415.1, the State unreasonably divested plaintiff of his right to own a firearm. Such action violates plaintiff’s right to keep and bear arms under Article I, Section 30 of the North Carolina Constitution.
Though this ruling is based only on state constitutional law, it raises a host of very interesting questions in the wake of Heller (especially given that the language of the NC constitution is parallel to the language of the Second Amendment). Let me do just a little issue spotting:
1. Does this ruling automatically extend to all other NC felons who can show a "history of respect for the law [and] the absence of any evidence of violence" in their lives? My guess is that a lot of drug and drunk driving felons might reasonably make such a claim; but do they need to go to court to get a formal ruling that they are like Britt?
2. Because Britt had his civil rights restored under state law, he is no longer prohibited under federal statutory law from possessing a firearm. But can this ruling help NC felons who don't have their civil rights restored if and when they get charged in federal court with felon-in-possession under federal law?
3. Will any lower federal courts be moved by the bold and clear assertion in Britt that the NC blanket ban on felon gun possession is "an unreasonable regulation, not fairly related to the preservation of public peace and safety"?
Federal prosecutors again found to have committed severe misconduct
This article from the Chicago Tribune, headlined "Prosecutorial misconduct seen in drug trial: Witness allowed to testify falsely, federal Judge Joan Lefkow rules," reports on yet another disturbing case of federal prosecutorial misconduct emerging from a prominent US Attorney's Office. Here are the basics:
A federal judge has found that a prosecutor in U.S. Atty. Patrick Fitzgerald's office committed prosecutorial misconduct by allowing a government witness to testify falsely in a drug conspiracy trial that resulted in the convictions of four defendants in March.
In a 27-page ruling issued Wednesday, U.S. District Judge Joan Lefkow ordered a new trial for the four on some counts, including the key conspiracy charge. But she refused to dismiss multiple other counts, meaning each faces sentencing for those convictions....
At trial, the prosecution's case relied in part on witness Senecca Williams, who testified as part of a plea agreement with the government. Lefkow described him as a key witness for prosecutors because he helped prove the elements of the conspiracy charge against the four defendants -- Rondell Freeman, Brian Wilbourn, Daniel Hill and Adam Sanders.
Leonard Goodman, the lawyer for Wilbourn, said the defendants and Williams were facing sentences of 20 years to life in prison on the conspiracy convictions. But Williams' deal called for only a 5-year sentence. "Everybody knows these witnesses will lie, saying whatever the government wants them to say to get their deals," Goodman contended. "The only difference is that in this case we happened to catch one."
Under questioning from prosecutors, Williams testified that during late 2002 and early 2003, he witnessed Wilbourn packaging narcotics and talking about drug business with Freeman at a Granville Avenue apartment sometimes known as the "penthouse." But the government ultimately conceded that Wilbourn was behind bars from April 2002 until September 2005 and that Freeman did not even live in the Granville Avenue apartment in 2002. That meant Williams' testimony could not be true.
But, Lefkow wrote, when defense lawyers confronted Williams with the fact that Wilbourn was actually in jail when Williams said he witnessed the conspiracy, one of the prosecutors -- Lefkow does not identify whom -- objected and said, "That's not true." Williams never conceded on the witness stand that he was lying or that he was mistaken, according to Lefkow....
Prosecutors argued that they did not knowingly use perjured testimony. But Lefkow wrote that she could not accept prosecutors' "glib assertion" that Williams was only mistaken in his testimony. What's more, she said it was "beside the point" whether Williams was lying or mistaken. "It is well established that the prosecution may not use testimony that it knows to be false," Lefkow said. And, she wrote, the government had ample reason to know that Wilbourn had been locked up when Williams said Wilbourn was free.
Thanks to this post at the WSJ Law Blog, everyone can read the full opinion from Judge Lefkow at this link. I am already looking forward to what the new Snitching Blog will have to say about this case.
Interesting information about LWOP instructions in capital cases
Thanks to this new item at the Death Penalty Information Center, everyone can check out how "states apply a variety of conditions and use differing instructions to inform" a capital jury about life without parole as a sentencing alternative. Here is the full posting from DPIC:
New Resources: State Instructions for Juries Regarding Life Without Parole Sentences in Capital Cases
In all states that use the death penalty, there are provisions for sentencing inmates to the alternative sentence of life without parole (LWOP). Prior to the U.S. Supreme Court's ruling in Simmons v. South Carolina (1994), some states with LWOP did not inform the jury of this alternative even when so requested by the defense. Today, states apply a variety of conditions and use differing instructions to inform the jury about this alternative sentence. Opinion polls and surveys of capital jurors have shown how important this alternative is in death penalty cases. Thanks to the research of Emma Reynolds of Drexel Law School and Intern at the Philadelphia Federal Defender, Capital Habeas Unit, we are able to offer a summary of how states handle this key issue. Her paper, "Survey of Life Without Parole Instructions in Death Penalty States," provides the relevant statute and information about jury instructions in each death penalty state. As with any legal research, it would be important to research any changes in the law before using this information (e.g., New Mexico has now abolished the death penalty and replaced the sentence with LWOP).
August 28, 2009
"Why March to a Uniform Beat?: Adding Honesty and Proportionality to the Individualized Tunes of Federal Sentencing "
The title of this post is the title of this interesting-looking new piece on SSRN from Jelani Jefferson Exum. Here is the abstract:
The Federal Sentencing Guidelines were initially created to increase uniformity in sentencing by diminishing the influence of individual judges’ biases in the sentencing determination. However, now that the Guidelines have been rendered advisory by the Supreme Court in United States v. Booker, and circuit courts have been directed to review sentences for “unreasonableness”, most of the Supreme Court’s attention has been focused on ensuring the preservation of uniformity, rather than recognizing the continued importance of bias reduction. The assumption, it seems, is that once uniformity in sentencing is achieved then the potential of judicial bias has been erased. However, judicial bias in sentencing is not necessarily eradicated by the uniformity promised by sentencing guidelines, and this possibility of bias in sentencing also has implications for the honesty and appropriate proportionality that Congress has called for to inform sentencing decisions. However, the Supreme Court has ignored these additional purposes of sentencing. Recently, in United States v. Gall, the Supreme Court explained that in order for a sentence to be procedurally reasonable, district courts must first calculate and consider the proper Guidelines range, consider the §3553(a) sentencing factors, and adequately explain the chosen sentence. However, out of those three requirements for procedural reasonableness, only the requirement that district courts begin the sentencing process by calculating the applicable Guidelines range — the factor that the Court considers to be the most closely related to ensuring uniformity — has been given any force. The requirements to consider the §3553(a) factors and adequately explain the sentence have fallen by the wayside as vague concepts, though these are the requirements that can most effectively ensure the reduction of impermissible bias in sentencing by allowing for a check on both honesty and proportionality. This Article reveals the Supreme Court’s error in requiring that district courts begin their sentencing determinations by calculating and considering the applicable Sentencing Guidelines range in order for the sentence to be procedurally reasonable. Not only is this requirement based on a misreading of the sentencing statutes, but it also cuts against the sentencing principles set forth by Congress as well as the traditional concern with individualized sentencing that has always been at the heart of sentencing jurisprudence and that are reflected in both the honesty and proportionality goals.
This Article provides an in-depth look at the Guidelines themselves in order to make the argument that the Supreme Court’s approach to sentencing post-Booker is misguided. The Supreme Court’s framework for an advisory Guidelines scheme allows the biases that are already buried in the Guidelines themselves to continue to act as the prevailing factors in sentencing. These biases, whatever the source, counteract Congress’ three-fold purpose in promulgating the Sentencing Guidelines in the first place — honesty, uniformity, and proportionality. Even the recent Supreme Court decision, Kimbrough v. United States, acknowledged that the Guidelines can sometimes create unwarranted disparities and lead to sentences that are unduly harsh. The new, advisory Guidelines system provides the opportunity for the Court to require that sentences be based on §3553(a) factors, in order to create uniformity in sentencing purposes rather than just in sentencing results, and to require real explanations to justify those sentences. Therefore, this Article proposes that the Supreme Court do away with the procedural requirement that district courts begin the sentencing process by calculating the Guidelines range in order to remove the possibility of using the Guidelines as a shield behind which to hide bias in the name of uniformity. As this Article asserts, not only is this outcome statutorily mandated, but it serves Congress’ own articulated sentencing principles and is consistent with notions of sentencing fairness that is reflected in the concept of individualized sentencing.
What should be the US Sentencing Commission's priorities these days?
Remarkably, we are rapidly approaching the five-year anniversary of the Supreme Court's decision to make the federal sentencing guidelines advisory in Booker. Much can be said about what Booker has changed, but what Booker clearly has not changed in the central importance of the work of the US Sentencing Commission to the operation and outcomes of the federal sentencing system.
As detailed in this official notice, this coming Monday afternoon the USSC has a public meeting scheduled at which it will be formally setting its priorities for the 2009-2010 amendment cycle. As noted in this post from June, the USSC set out here a very ambitious set of proposed priorities for this amendment cycle. Though I am very pleased that the USSC has in mind a robust agenda, I wonder and worry if it risks bitting off more than it can effectively chew, especially since it is still awaiting the Senate confirmation of the new chair and new commissioner nominated by President Obama.
With this background, dear readers, I pose for a Friday afternoon discussion in the comments the basic question that titles this post: What should be the US Sentencing Commission's priorities these days?
August 27, 2009
The next chapter in the Troy Davis story begins
The Atlanta Journal-Constitution has this story, headlined "Troy Davis case treads new legal ground," which details how the Troy Davis case will be proceeding in the district court after it was transfered there by the Supreme Court:
A federal judge in Savannah has directed parties in the Troy Davis death-penalty case to give him their positions as to whether a “free-standing actual innocence claim” is recognized by the U.S. Constitution. In a three-page order issued late Wednesday, Chief U.S. District Judge William T. Moore Jr. said he is following instructions from the nation’s highest court....
Moore, who was assigned the case, ordered state attorneys to submit their legal briefs to him in 45 days. He gave Davis’ lawyers another 45 days to respond. This would mean Davis’ evidentiary hearing would not be convened until November at the earliest.
Moore noted that the U.S. Supreme Court has never determined that an innocence claim such as the one raised by Davis is recognized by the Constitution. The high court also has not determined the burden of proof to be allowed in such a case, Moore said, asking the parties to give him their positions on both issues.
Related Davis ruling posts:
- SCOTUS orders innocence hearing in Troy Davis case
- How many justices decided death and innocence (and original habeas) are different in Davis?
- "Supreme Court's Davis Ruling Raises New Death-Penalty Questions"
Latest news on sentencing and prison reform in California
Anyone closely following the saga of proposed sentencing and prison reforms in California will want to be sure to check out these two new press reports:
- From the Contra Costa Times here, "Assembly to push milder prison reform plan"
- From the Los Angeles Times here, "Rights groups urge Atty. Gen. Jerry Brown to comply with prison reduction order"
Seventh Circuit enforces requirement that district judges address non-frivolous sentencing arguments
The Seventh Circuit today issued an important little opinion on post-Booker procedural requirements in US v. Villegas-Miranda, No. 08-2308 (7th Cir. Aug. 27, 2009) (available here). Here is a key passage from the ruling (with internal cites and quotes left out):
Even if the sentencing court stated convincing reasons for the sentence it imposed, we cannot find its silence in response to a defendant’s principal argument to be harmless error because we can never be sure of what effect it had, or could have had, on the court’s decision. Given that there is no dispute that Villegas-Miranda’s concurrent sentences” argument was one of his two principal arguments, if it was not so weak as to not merit discussion, the sentencing court was required to respond to it. Although the district court listened at length to Villegas-Miranda’s “concurrent sentences” argument, we cannot take on faith that it adequately considered the argument where it passed it over in silence.
This case reinforces my sense that the Seventh Circuit has been distinctly rigorous in enforcing the requirement that district courts expressly address any and all non-frivolous defense arguments for below-guideline sentences. I am pleased to see the Seventh Circuit being tough on this requirement — which I view as one of the most important aspects of the Supreme Court's Rita ruling — especially given my sense that lots of other circuits tend to take a "good enough for government work" approach to this issue.
Some related posts:
- "Explaining Sentences"
- Stressing the importance of sentencing explanations by district courts
What should we take away from the latest private prison scandal?
The New York Times reported yesterday on the latest private prison scandal in this piece headlined "Hawaii to Remove Inmates Over Abuse Charges." Here are some of the details:
Hawaii prison officials said Tuesday that all of the state’s 168 female inmates at a privately run Kentucky prison will be removed by the end of September because of charges of sexual abuse by guards. Forty inmates were returned to Hawaii on Aug. 17....
Otter Creek is run by the Corrections Corporation of America and is one of a spate of private, for-profit prisons, mainly in the South, that have been the focus of investigations over issues like abusive conditions and wrongful deaths. Because Eastern Kentucky is one of the poorest rural regions in the country, the prison was welcomed by local residents desperate for jobs.
Hawaii sent inmates to Kentucky to save money. Housing an inmate at the Women’s Community Correctional Center in Kailua, Hawaii, costs $86 a day, compared with $58.46 a day at the Kentucky prison, not including air travel.
Hawaii investigators found that at least five corrections officials at the prison, including a chaplain, had been charged with having sex with inmates in the last three years, and four were convicted....
The private prison industry has generated extensive controversy, with critics arguing that incarceration should not be contracted to for-profit companies. Several reports have found contract violations at private prisons, safety and security concerns, questionable cost savings and higher rates of inmate recidivism. “Privately operated prisons appear to have systemic problems in maintaining secure facilities,” a 2001 study by the Federal Bureau of Prisons concluded.
Those views are shared by Alex Friedmann, associate editor of Prison Legal News, a nonprofit group based in Seattle that has a monthly magazine and does litigation on behalf of inmates’ rights. “Private prisons such as Otter Creek raise serious concerns about transparency and public accountability, and there have been incidents of sexual misconduct at that facility for many years,” Mr. Friedmann said.
But proponents say privately run prisons provide needed beds at lower cost. About 8 percent of state and federal inmates are held in such prisons, according to the Justice Department. “We are reviewing every allegation, regardless of the disposition,” said Lisa Lamb, a spokeswoman for the Kentucky Department of Corrections, which she said was investigating 23 accusations of sexual assault at Otter Creek going back to 2006....
In July, Gov. Linda Lingle of Hawaii, a Republican, said that bringing prisoners home would cost hundreds of millions of dollars that the state did not have, but that she was willing to do so because of the security concerns. Prison overcrowding led to federal oversight in Hawaii from 1985 to 1999. The state now houses one-third of its prison population in mainland facilities.
The pay at the Otter Creek prison is low, even by local standards. A federal prison in Kentucky pays workers with no experience at least $18 an hour, nearby state-run prisons pay $11.22 and Otter Creek pays $8.25. Mr. Friedmann said lower wages at private prisons lead to higher employee turnover and less experienced staff.
Obviously, this piece reveals yet another piece of the broader stories surrounding the modern prison economy in lean budget times. But it also raises distinct questions about the potential virtues and vices of private prison facilities that now hold around 200,000 prisoners all around the United States. Given the size and scope of this industry, I am disappointed (though not really surprised) that we do not hear more debates and see more research on the entire private prison approach to corrections.
Notable Second Circuit ruling on problems with long-delayed sentencing
The Second Circuit has an intriguing little sentencing ruling today in US v. Ray, No. 08-2795 (2d Cir. Aug. 27, 2009) (available here). Here is how the opinion's official abstract explains the issues covered:
Appeal from a judgment of the United States District Court for the Eastern District of New York (Thomas C. Platt, Judge), sentencing defendant, after a fifteen-year delay, to a one-day term of imprisonment and three years of supervised release with a special condition that she serve six months in a halfway house. Defendant challenges her conviction and sentence on the grounds that she was deprived of her right to a speedy sentencing under the Speedy Trial Clause of the Sixth Amendment and the Due Process Clause of the Fifth Amendment. Alternatively, defendant seeks a remand for resentencing because, in her view, the sentence serves no rehabilitative purpose and is, consequently, unreasonable. We reject defendant’s Sixth Amendment challenge because sentencing and trial are separate and distinct phases of criminal proceedings, and the Speedy Trial Clause applies to trials only, not to sentencing proceedings. We do, however, see merit in her Fifth Amendment challenge. The fifteen-year delay in the imposition of sentence on defendant is not justified by any legitimate reason and has caused her prejudice insofar as the custodial portion of it threatens to undermine her successful rehabilitation. We therefore vacate the portion of her sentence requiring a six-month residence in a halfway house in order to remedy the prejudice caused by the violation of her rights under the Due Process Clause. We do not reach her “unreasonableness” challenge to the sentence.
Affirmed in part, and vacated with respect to the special requirement that defendant reside for six months in a halfway house.
August 26, 2009
Will (local?) killer in Vermont challenge his federal capital prosecution?
I blog here yesterday about the decision by the Justice Department will to pursue federal death penalty charges against Michael Jacques, a Vermont sex offender accused of an awful rape/murder crime. This updated local story about the case provides some useful additional information and commentary about the interesting federalism issues that the case raises:
Vermont does not have the death penalty, but Jacques is being charged under federal law because he allegedly used the Internet to both plan for and cover up the crime, according to police. Because of that, the crime is considered to have crossed state borders, opening it up for federal prosecution.
This would be the third death penalty case in Vermont since the late 1990s. A 1998 case involving a fatal bombing in Fair Haven had a death sentence attached, but the defendant later pleaded down for a life sentence in prison. In 2005, Donald Fell was sentenced to death for the 2000 carjacking murder of a North Clarendon woman, who was kidnapped by Fell in Rutland and later killed in New York State. He now sits on death row.
Cheryl Hanna, a professor at the Vermont Law School, said the announcement was interesting because it is the first from the new Obama administration on the use of the death penalty in states that do not have one. "I suspect that we will see some kind of outcry from death penalty opponents over this decision, as we did with the Fell case," she said.
Hanna said it may well be that Jacques' defense questions the constitutionality of the law allowing the federal government to prosecute. In the Fell case, the crime clearly crossed state borders, but here, Hanna explained, prosecutors are relying on a new law allowing them to step in because the crime allegedly involves the Internet. "I would not be surprised if the defense questions the law itself here," she said.
This case is already starting to sound like fodder for a law school exam question: Is using the internet while planning a local crime sufficient to provide federal jurisdiction to prosecute that local crime? Should it be?
Some related (and mostly dated) posts:
- Feds decide to seek death in local(?) killing in state without the death penalty
- "Death penalty decisions loom for Barack Obama"
- More support for an exclusively federal death penalty
- A poster child for the (federal) death penalty?
- The federal law gap in the NJ death penalty report
- The federal death penalty in America's paradise
- Ashcroft's death penalty "legacy"
- Expansion of the federal death penalty?
"Executed prisoners are main source of Chinese organ donations"
The title of this post is the headline of this new piece from The Guardian. Here are the basic details:
Two-thirds of organ donors in China are executed prisoners, state media reported today, as health officials launched a national donation system. The authorities have previously acknowledged that corneas, kidneys and other body parts from criminals have been transplanted. But the new figure offers a startling insight into the scale of the country's reliance on death-row inmates, despite laws supposed to curb the use of their organs.
Officials hope the new scheme will tackle the thriving black market in body parts, and encourage voluntary donation, which remains far below demand. The state newspaper China Daily said that about one million people needed transplants each year — but only 1% received them....
Two years ago, China ruled that organs from executed prisoners would be given only to family members, and that living donors could give body parts only to relatives or those with an "emotional connection"....
A World Medical Association agreement — signed by China among others — asks countries not to use organs from death-row prisoners because of concerns about whether they have truly given informed consent. "The implementation of the death penalty is completely opaque in China — there is absolutely no transparency," said Phelim Kine, Asia researcher for Human Rights Watch. "Therefore, there is a complete lack of transparency with regard to transplantation and the disposal of the organs of death-row prisoners, whom we now know constitute the majority of donors in China."...
The number of people executed in China is a state secret, but Amnesty International said that at least 1,718 people were executed in 2008 — more than in any other country — based on recorded cases. Human rights groups suggest the true number runs into several thousands, although officials say their "kill fewer, kill carefully" campaign has cut the numbers and have pledged to further reduce use of the death penalty.
Illinois creates a new sentencing "advisory council"
As detailed in this press release, Illinois "Governor Pat Quinn on Tuesday signed a package of bills reducing the complexity and length of the Illinois Criminal Code and creating an advisory body to conduct comprehensive analyses of state sentencing laws and the impact sentencing changes would have on the criminal justice system." Here are more details:
The trio of bills is the most recent product of the Criminal Law Edit, Alignment and Reform (CLEAR) Commission, which is composed of legislators, prosecutors, defense attorneys, judges, law enforcement representatives and other experts in the criminal justice system....
The CLEAR bills signed by Gov. Quinn include Senate Bill 1300 and Senate Bill 1325, which together rewrite about one-quarter of the Illinois Criminal Code. The editing process removed redundancies, replaced unconstitutional sections, clarified ambiguities and reordered the statutes to make them more understandable to practitioners and the public. The recommendations of the CLEAR Commission for the remainder of the criminal code rewrite will be addressed in upcoming sessions. When finished, the Illinois Criminal Code is expected to be reduced in size by one-third.
The third bill, Senate Bill 1320, creates the Illinois Sentencing Policy Advisory Council, an 18-member council to be housed in the Illinois Criminal Justice Information Authority. "This new council will help policy makers get a better understanding of the current criminal justice system and make recommendations to increase public safety and make the system more efficient and effective for everyone involved," said former Illinois Appellate Court Justice Gino L. DiVito, who co-chairs the CLEAR Commission.
"There is no shortage of ideas about how to change the system, but too often the impact of proposed changes is not well understood," said former Gov. James R. Thompson, co-chair of the CLEAR Commission. "When policy changes are being debated, the public and their elected representatives now will have a place to go for solid, non-partisan information, including evaluation of changes in other states, prison population projections, and the latest research in the field."
Especially as California ties itself into knots debating the creation of a sentencing commission and badly needed prison reforms, it is refreshing to see news of another state able to move forward with ideas and institutions that ought to help improve and enhance rational criminal justice policymaking.
Uniform Law Commission passes important act concerning collateral consequences
As detailed in this press release, earlier this summer the Uniform Law Commission finalized and approved the Uniform Collateral Consequences of Conviction Act. Here is some background and the basic details from the release:
[This Act] addresses the consequences of the conviction of a crime that are imposed by law in addition to direct penalties imposed by the judge. Traditionally, offenders are sentenced to fines, probation, and jail or prison terms. When this punishment is complete, as far as the criminal justice system is concerned, the offender has done the time and repaid his or her debt to society. However, today’s offenders learn — often too late — that they have only begun to suffer the consequences of their convictions after they have served their sentences. More and more, states are imposing subsequent penalties and disabilities on those convicted of particular crimes. These “collateral consequences” are in addition to those imposed at sentencing. The sanctions vary from state to state, but they generally relate to restrictions on voting, occupational licensing, vehicle licensing, firearm restrictions, offender registration, and public benefits. Preliminary studies show that, in many states, literally hundreds of these consequences may apply. Unlike direct consequences of conviction, collateral consequences are often unknown, may prove devastating, and often last a lifetime.
To deal with this issue, the Uniform Collateral Consequences of Conviction Act was approved by the Uniform Law Commission (ULC) at its 118th Annual Meeting.... The provisions of the Uniform Act are largely procedural, and designed to rationalize and clarify polices and provisions which are already widely accepted in the states.
The Act includes provisions to ensure that defendants are aware of the existence of collateral sanctions before conviction, are reminded of them at release, govern the effect of out of state convictions, and provide limited means by which some offenders may obtain relief from many such consequences.
More details and documents concerning these issues can be found on this page at the website of The National Conference of Commissioners on Uniform State Laws.
This new Act is especially timely and important as policy-makers consider reforming their sentencing laws in light of budget woes and as everyone focuses more on ways to improve prisoner reentry. In addition, the important case of Padilla v. Kentucky (SCOTUSwiki coverage here), which concerns a defense lawyer's obligation to inform a defendant of certain consequences of pleading guilty, could have a big impact on how states and lawyers can and should be approaching these issues.
Interesting debate over judge's questions to rape victim at sentencing
Thanks to Scott at Grits for Breakfast, I have learned of an interesting debate over how a Texas state judge at sentencing questioned a rape victim. Here are some links to the story and reactions:
- From the Houston Chronicle here: "After rapist convicted, judge grills the victim"
- From Grits here, "Did Judge Kevin Fine cross the line questioning a rape victim? Your answer may say a lot about you"
These stories raise broader questions about the procedures that are used and should be used when victims are involved in the sentencing process. Because nearly all sentencing proceedings take place in front of the sentencing judge, rarely are the formalities of the adversarial system followed (and, of course, many constitutional and statutory rules applicable at trial do not even apply at sentencing). But, as this story highlights, victims may be surprised and troubled when judges get directly involved in asking probing and challenging questions concerning the nature of the offense.
Could smart prisoner release be a sound economic stimulus?
The question of this post is prompted by this provocative new (and very timely) working paper recently appearing on SSRN. The piece is titled "Work Release as Economic Stimulus: Overview of Current and Potential Usage in the 50 States," and here is the abstract:
Work release programs are authorized by the statutes of all fifty states. Some states have clearly articulated work release programs while others are partial, with little statutory governance for their establishment or operation. Yet most correctional authorities agree that work release provides crucial transitioning into functional re-entry. As the recent crises in the California correctional system dramatized, overflowing systems can no longer be tolerated. The contemporary penal climate, which prioritizes economic efficiency and evidence-based corrections, is ripe for a re-invigoration of a tried and true technique. Therefore, in order to document the current state of work release in the U.S., we combined a review of statutory authorization with an examination of implementation. We begin by describing the reasons why work release makes sense, focusing on the example of Washington state, followed by a review of the current parameters of work release in state law. By examining how work release now works, we can suggest how best to take advantage of the interest in bringing economic efficiency to the correctional system.
"Lawmakers more worried about safe seats than safe streets"
The title of this post is the headline of this effective opinion piece in the Los Angeles Daily News that is effectively attacking the California legislature from making the hard choices that are required to reform the state's sentencing and prison problems. Here are snippets:
Our dysfunctional state legislators are doing it again — so afraid of appearing soft on crime, they are quaking at the hard decisions necessary to balance the state budget....
California lawmakers currently spend 10 percent of the state general fund on prisons, about what they spend on education. The state spends about $27,000 a year to lock up each of its 167,000 prisoners.
Before deciding to postpone action on prison costs, the Assembly ripped sections out of the Senate plan that reduced the number of inmates released by 10,000. That would leave the budget $200 million in the hole.
Speaker Bass also jettisoned a plan to allow home detention with electronic monitoring for inmates who are 60 or older, medically incapacitated or have less than one year to serve on their sentence. A proposal to allow prisoners to earn up to four months of early release for inmates completing rehabilitation programs was added by Bass, but she pulled a provision that would change several property crimes from felonies to misdemeanors. The changes were designed to mollify opposition by associations representing prosecutors and police chiefs.
In the end, Sacramento lawmakers lacked the nerve to do their jobs. Why should they?... Maybe they hope if they stall long enough, the problem will be solved by the federal judges who earlier this month ordered the state to cut its prison population by 25 percent within two years, or the court would do the cutting.
With one of the highest incarceration rates in the world, conditions in California prisons were ruled cruel and unusual punishment by the panel of judges. An example is the Chino prison riot a few weeks ago. Chino holds 5,900 inmates; it was built to house 3,000....
Republicans and Democrats should be working together to solve the prison-cutting problem. There should be compromising, a lot more give and take. Or lawmakers can be safe and wait for federal judges to do their jobs for them.
I found this piece particularly noteworthy because it recognizes the connection between dysfunctional state politics and so-called activist federal judges. I have little doubt that the panel of federal judges who ordered prison population reductions in California want state lawmakers to decide exactly how such a reduction will be achieved. But, because state lawmakers are unable or unwilling to make hard political choices in the form of reducing prison populations or raising taxes to fund current expenses, these issue necessarily get punted back to federal courts.
Some recent related posts:
- Latest legislative twist suggests California won't have a sentencing commission anytime soon
- Debate and drama continues in California over prison and sentencing reform
- California prison and sentencing reforms getting closer to reality
- Possibility of California sentencing commission continues to generate controversy
- Federal judicial panel orders California to drastically cut prison population
- "Free 40,000 California inmates? Not so fast."
- Prison reforms and cuts left uncertain in final California budget deal
- Economic necessity finally forcing long-needed reform in California
- "State police chiefs' association backs prison plan in budget"
- Defending the prison cuts in the new California budget
- "Gulags in the sun"
- "The Fiscal Crisis in Corrections: Rethinking Policies and Practices"
- Reviewing how tough times are resulting in prison releases
Assessing Senator Kennedy's sentencing reform legacy
As reported here, Senator Edward Kennedy passed away last night at the age of 77. Though I doubt the mainstream media will talk much, if at all, about his foundational role in federal sentencing reform efforts, I will always think of Senator Kennedy as one of the driving forces behind the passage of the Sentencing Reform Act of 1984. In a future post, I may try to put together a mini-bibliography of some of Senator Kennedy's writings and advocacy in the area.
In this post, however, I would like to hear from readers about what Senator Kennedy's sentencing reform legacy should be in light of what the SRA became, and also given Senator Kennedy failure to prevent Congress from regularly adopting mandatory minimum sentencing statutes that seem in tension with various key principles of the SRA. Ultimately, only sentencing gurus will likely view Senator Kennedy's career through the lens of federal sentencing reform, but I figured this blog should provide the best forum for such a discussion.
August 25, 2009
Feds decide to seek death in local(?) killing in state without the death penalty
This local story out of Vermont strikes me as especially notable because it suggests that the Obama Justice Department will be continuing the Bush Justice Department's willingness to pursue federal death penalty charges for awful crimes in states without the death penalty. Here are the particulars:
The U.S. Department of Justice announced Tuesday that it would seek the death penalty for Michael Jacques, the man accused of killing 12-year-old Brooke Bennett last summer. Federal officials said Tuesday that Jacques’ alleged rape and murder of his young niece was “especially heinous, cruel [and] depraved” and that the 43-year-old suspect has shown no remorse for the crime he is accused.
According to police, Jacques raped and murdered Bennett after luring the girl, with the assistance of another young juvenile, to his home on June 25, 2008 under the pretense that she would be attending a pool party with kids her age. “We’re very, very pleased,” said Mary Larson, a close friend of Bennett’s family. “There are a lot of people in Randolph who are going to be shocked tonight, but also very happy when they hear this news.”
Bennett’s initial disappearance – which launched Vermont’s first-ever Amber Alert – and the later revelation that the 12-year-old Braintree girl was murdered, shocked the small town last summer where the crime took place and led to new sex offender legislation at the state level.
But the criminal case against Jacques, who was arrested days after Bennett’s disappearance, has moved slowly as officials with the U.S. Department of Justice, the prosecutors in the case, decided whether or not to seek the strongest penalty – death – against Jacques.
Though I am not familiar with all the fact of this case, I am having a hard time seeing what make this seemingly local crime a matter of federal concern other than the fact that the feds can seek the death penalty while state prosecutors cannot.
Of course, as some regular readers know, I have suggested in some prior posts here and here, that states should rarely (if ever) bother to pursue capital cases and should instead simply request that federal authorities assume primary responsibility for pursuing the death penalty in the most horrific murder cases. So, I am not too troubled by this expansion of federal power. But I suspect some folks on the left categorically opposed the death penalty might not like this news. And perhaps even some folks on the right concerned about every growing federal government might wonder why this is now a federal case.
Some related (and mostly dated) posts:
- "Death penalty decisions loom for Barack Obama"
- More support for an exclusively federal death penalty
- A poster child for the (federal) death penalty?
- The federal law gap in the NJ death penalty report
- The federal death penalty in America's paradise
- Ashcroft's death penalty "legacy"
- Expansion of the federal death penalty?
Can sex offenders be requires to provide all their on-line information to law enforcement?
This local article from Georgia, headlined "Judge mulls law on sex offender online obligations," reports on notable constitutional litigation concerning post-offense restrictions on sex offenders. Here are details from the story:
A federal judge on Tuesday began weighing arguments for and against a new Georgia law that requires sex offenders to hand over Internet passwords, screen names and e-mail addresses to law enforcement officials in the name of public safety.
Attorneys for convicted sex offender Terrence White urged U.S. District Judge Bill Duffey to block the law because it infringes on White's constitutional rights. State attorneys countered that the 2009 law gives authorities a much-needed tool to make sure registered sex offenders don't strike again. Duffey did not rule immediately, but he said the case centers on a "fundamental issue in our culture." "Children do have to be protected, but that also has to be balanced with constitutional protections," he said. "And I never take those lightly."...
White, who is challenging the law in Georgia, was convicted in 1986 of enticing a child for indecent purposes. His attorney, Nicole Iannarone, contended that the law is written so broadly that it could allow authorities access to his online retail accounts, bank information and anything else considered "interactive online forums."
She argued that an overzealous sheriff could charge her client or another sex offender with violating the registry's rules if he or she refuses to turn in their Delta.com account information. "The statute is over-broad, and it doesn't have anything to do with the mission of protecting children."
State attorney Paige Boorman, however, countered that the measure "is relevant and necessary to protect the public." She said online screen names and passwords are "tools for law enforcement" that will make it easier for them to investigate and prevent another sex crime before it's too late.
Duffey peppered both attorneys with questions, but focused on the balance between public safety and free speech. The addresses of sex offenders in Georgia are already posted online to alert neighbors to their whereabouts, the judge said. "I'm not aware of a fundamental right to live somewhere anonymously," Iannarone replied. "It is a fundamental right to speak anonymously."