August 25, 2009
Five years on probation for Chris Brown in high-profile domestic violence case
As detailed in this LA Times update, singer Chris Brown was sentenced today for assaulting his former girlfriend. Here are the details:
Pop singer Chris Brown was sentenced today to five years of probation and 180 days community labor — to be personally supervised by the chief of police in Richmond, Va. — in connection with his attack on former girlfriend Rihanna.
Brown reached a plea deal with L.A. prosecutors in June that was expected to limit his sentence to probation and no jail time. Under the agreement, Brown, 20, will serve five years' probation and take a yearlong domestic violence prevention class. L.A. County Superior Court Judge Patricia Schnegg also ordered him to stay at least 50 yards away from Rihanna, 21, for the next five years.
Brown was arrested in February for beating and threatening Rihanna, also a pop singing star, during an argument in a rented Lamborghini. The incident occurred as the couple drove home from a pre-Grammy party.
As always in these high profile cases, I am curious to hear reader reactions to the sentence itself and to the broader message this kind of sentence sends.
Ohio Supreme Court rules on the scope of Apprendi's "prior conviction" exception
In a unanimous ruling in Ohio v. Hunter, No. 2009-Ohio-4147 (Ohio Aug. 25, 2009) (available here), the Supreme Court of Ohio ruled today that the Sixth Amendment does not preclude a judge from basing a sentencing enhancement on relevant information about the offender’s prior convictions that is part of the judicial record. This official press release provides background on the Hunter ruling, and here are sections of the discussion on the reach of Apprendi and the Sixth Amendment (with some cited omitted):
Relying on the decisions in Apprendi, Blakely, Shepard, and Taylor, several of our sister states have also held that sentencing courts may look beyond the mere existence of a prior conviction without violating the Sixth Amendment. For example, in Ryle v. State (Ind.2005), 842 N.E.2d 320, the Supreme Court of Indiana affirmed an enhanced sentence based on a judicial finding from information about a prior offense contained in a presentence investigation report. The court stated that “[t]he presentence investigation report relies on ‘judicial record[s]’ that guarantee the conclusive significance that is the focus of Apprendi.” Id. at 325, quoting Shepard, 544 U.S. at 26...
Thus, pursuant to Shepard, 544 U.S. 13, we hold that when designating an offender as a “repeat violent offender” pursuant to former R.C. 2929.01(DD), a trial court does not violate the Sixth Amendment by considering relevant information about the offender’s prior conviction that is part of the judicial record.
In this case, in order to declare Hunter a repeat violent offender, the court had to determine whether he had a prior conviction and had served a prison term for a felony of the first or second degree that resulted in physical harm to the victim. These facts may be readily determined from the indictment and sentencing entry for his 1990 conviction for felonious assault with a specification of physical harm and his resulting sentence of eight to 15 years’ incarceration. The trial court did not violate Hunter’s constitutional rights by considering these documents, which are “judicial record evidence” created in connection with his prior conviction. Shepard, 544 U.S. at 20. Moreover, the findings required by former R.C. 2929.01(DD) pertain directly to the issue of recidivism, which has traditionally been within the purview of the sentencing court, not the jury, Almendarez-Torres, 523 U.S. at 244, and Hunter has not suggested that the trial court’s findings in this case are erroneous.
August 25, 2009 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (2) | TrackBack
"Statewide Capital Punishment: The Case for Eliminating Counties' Role in the Death Penalty "
The title of this post is the headline of this new articleappearing on SSRN from Professor Adam Gershowitz. Here is the abstract:
In almost every state that authorizes capital punishment, local county prosecutors are responsible for deciding when to seek the death penalty and for handling capital trials. This approach has proven to be arbitrary and inefficient. Because death penalty cases are extremely expensive and complicated, counties with large budgets and experienced prosecutors are able to seek the death penalty often. By contrast, smaller counties with limited budgets often lack the funds and institutional knowledge to seek the death penalty in truly heinous cases. The result is geographic arbitrariness. The difference between life and death may depend on the side of the county line where the offense was committed. Furthermore, in some counties, death penalty cases are handled by subpar lawyers. Inadequate lawyering leads to capital cases being reversed for prosecutorial misconduct, ineffective assistance of counsel, and inaccurate rulings by trial judges. Following reversal, these capital cases are re-litigated for years at enormous expense.
Because county control of death penalty cases has proven to be a failure, this article offers a roadmap for eliminating counties' involvement in the death penalty system. All aspects of capital cases — charging, trial, appeal, and everything in between — can and should be handled at the state level by an elite group of prosecutors, defense lawyers, and judges whose sole responsibility is to deal with capital cases. This article details how an elite statewide death penalty unit could be created and how it could minimize the geographic arbitrariness of the death penalty while simultaneously reducing the costs of handling death penalty cases.
My first reactions is that Adam's proposal makes so much sense that it is almost certainly never going to happen. In all seriousness, because all (capital) politics is local, I doubt many counties will want to relinquish local capital case control to state-level actors. Moreover, I doubt many state-level actors will be eager to be on the front lines of what can be, at least in certain states, a third-rail of criminal justice politics. That all said, this new article is certainly today's death penalty must-read.
Ninth Circuit uphold application of SORNA against various constitutional challenges
Providing more proof that the Ninth Circuit is not as defendant-friendly as many think, a panel of the Ninth Circuit today quick rejects an array of arguments from a federal defendant convicted of failing to register as a sex offender in violation of the Sex Offender Registration and Notification Act (“SORNA”). The opinion in US v. George, No. 08-30339 (9th Cir. Aug. 25, 2009) (available here), ends this way:
The district court correctly denied George’s motion to dismiss the indictment. The registration requirement under SORNA required him to register as a sex offender in the State of Washington, to which state he moved from Idaho, even though Washington had not implemented the statute. SORNA’s registration requirements are a valid exercise of congressional commerce power, and do not violate the ex post facto clause of the Constitution.
Third Circuit finds probation sentence for child porn downloading unreasonable
In yet another noteworthy child porn sentencing case, the Third Circuit today reverses a below guideline sentence as unreasonable in US v. Lychock, No. 06-3311 (3d Cir. Aug. 25, 2009) (available here). Here is how the opinion gets started:
The government appeals a sentence of five years probation and a $10,000 fine imposed on George Lychock for his knowing possession of between 150 and 300 images of child pornography. The applicable Sentencing Guidelines range, as both parties had agreed, was 30 to 37 months. We agree with the government that Lychock’s sentence was procedurally and substantively unreasonable. We will vacate the judgment of sentence and remand this case for resentencing.
Are the crooked Pennsylvania juve judges really going to go to trial?
As detailed this post and this post, a federal judge recently rejected the plea deal secured by two former Pennsylvania county judges who had pleaded guilty to a kickback scheme involving sending juveniles to private detention facilities. Now, as reported in this new local story, these "judges charged in the 'kids for cash' corruption scandal withdrew their guilty pleas yesterday after a federal judge ruled they had failed to accept responsibility for their actions." The local story goes on to assert that "the decision by disgraced Luzerne County Judges Mark Ciavarella and Michael Conahan paves the way for a trial on charges that they took $2.6 million in kickbacks to place youth offenders in privately owned detention centers."
But I cannot help but wonder if these crooked judges — need I now say "alleged" crooked judges? — are really going to contest their corruption charges at trial. My instinct is that the original pleas have been formally withdrawn primarily to enable the defendants to go back to square one with prosecutors so that they can develop a new deal that the federal judge would be willing to accept. But, maybe there are still other parts to this story that might better account for what's really going on in this ugly case.
- State judges plead guilty to sending juves to jail for moolah
- Federal sentencing fall-out from juve sentencing corruption
- District judge rejects plea deal offered to crooked state judges
- Crooked state judges make plea to have their plea deals accepted
August 24, 2009
Intriguing NPR piece on compassionate release of Lockerbie bomber
This afternoon's NPR program Talk of the Nation included this interesting half-hour segment titled "'Compassionate' Release For Lockerbie Bomber." Here is the official summary of the segment:
The only man convicted of the 1988 bombing of a Pan Am flight over Lockerbie, Scotland, was freed from a Scottish prison on what Scottish authorities call "compassionate grounds." He is terminally ill with cancer. Guests examine the limits of compassion.
Though I've only heard half the segment so far, what I have heard raised lots of interesting and important matters worthy of consideration and reflection for all sentencing law and policy fans.
Latest legislative twist suggests California won't have a sentencing commission anytime soon
This blog post from the LA Times provides what seems to be the latest news out of the California legislature concerning proposed prison and sentencing reforms in that state. Here are the basics:
Assembly Speaker Karen Bass has put off a vote on a package of legislation intended to trim spending on state prisons, and she intends to eliminate a provision of the plan that would have created a commission to reevaluate California’s sentencing laws, according to an Assembly source who was not authorized to speak publicly on the matter.
After keeping Assembly members until midnight Thursday in the hope of reaching a deal on prisons, Bass (D-Los Angeles) said she would try to approve it today. But based on conversations over the weekend, she still does not have enough votes from the Democrats who control the chamber....
Although Bass agreed to bolster the law enforcement representation on the sentencing commission, Assembly member Alberto Torrico (D-Newark), one of three Assembly Democrats running for attorney general, said Sunday that a key issue remained: how much power lawmakers would have over whether to implement the panel’s recommendations.
Under the Senate’s plan -- and in the Assembly version, until now -- the commission’s recommendations would automatically take effect if the Legislature and governor failed to reject them. That way, even if lawmakers rejected the panel’s findings, they would still go into effect if the governor vetoed the lawmakers’ vote. “The notion that the Legislature would not be required to vote on a sentencing commission proposal, I just think it’s real problematic,” Torrico said.
Some recent related posts:
- 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."
- "Gulags in the sun"
- 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
- "The Fiscal Crisis in Corrections: Rethinking Policies and Practices"
- Reviewing how tough times are resulting in prison releases
AG Holder describes his "five principles" for combatting crime
In this new speech delivered today as part of the a White House Conference on Gang Violence Prevention and Crime Control, Attorney General Eric Holder has a lot of interesting old and new things to say about his approach to crime and punishment issues. Here are some highlights from the start of the speech:
You, our mayors and police chiefs in this room, are innovators in the administration of justice. You are the people who work to make changes on the front-lines. You are constantly refining your approach to crime. You know what works, and what doesn’t work, to make our neighborhoods and communities safer. You field-test new strategies and you prove that solutions are possible to some of our most challenging crime problems.
Much of your success is attributable to your sensitivity to the specific needs of the communities you serve, and to your ability to understand what works in a given context. Indeed, crime-fighting is more than anything a local pursuit, and we all know that there is no such thing as a one-size-fits-all answer to the problem of crime. What works in Chicago may not work in Bismarck. So why come together in a gathering like this one?
I believe that, ultimately, we cannot get smart on crime in isolation. A rational, data-driven, evidence-based, smart approach to crime — the kind of approach that this Administration is dedicated to pursuing and supporting — must be part of a partnership in public safety. It requires the exchange and evaluation of experiences, and exposure to new ideas. That is what brings us together today.
I want to get us started on the day’s work by noting five principles that have guided my own approach to combating crime in my time as Attorney General and before. 1. Innovate. 2. Devise evidence-based strategies. 3. Show results. 4. Learn from peers. 5. Collaborate.
It is in the spirit of these principles that, for example, I have asked attorneys throughout the Department of Justice to conduct a comprehensive, evidence-based review of federal sentencing and corrections policy. The group is examining the federal sentencing guidelines, the Department’s charging and sentencing advocacy practices, mandatory minimums, crack/powder cocaine sentencing disparities, and other possible racial and ethnic disparities in sentencing. The group is also studying alternatives to incarceration, and strategies that help reduce recidivism when former offenders re-enter society.
In my view, the same principles behind that effort can also guide us in building successful partnerships in public safety.
An important new book on criminal registries: "Knowledge as Power"
I am pleased to report the publication of this important new book by Professor Wayne Logan: "Knowledge as Power: Criminal Registration and Community Notification Laws in America." Here is a description of the book from the publisher:
Societies have long sought security by identifying potentially dangerous individuals in their midst. America is surely no exception. Knowledge as Power traces the evolution of a modern technique that has come to enjoy nationwide popularity — criminal registration laws. Registration, which originated in the 1930s as a means of monitoring gangsters, went largely unused for decades before experiencing a dramatic resurgence in the 1990s. Since then it has been complemented by community notification laws which, like the "Wanted" posters of the Frontier West, publicly disclose registrants' identifying information, involving entire communities in the criminal monitoring process.
Knowledge as Power provides the first in-depth history and analysis of criminal registration and community notification laws, examining the potent forces driving their rapid nationwide proliferation in the 1990s through today, as well as exploring how the laws have affected the nation's law, society, and governance. In doing so, the book provides compelling insights into the manifold ways in which registration and notification reflect and influence life in modern America.
Because of the modern American affinity for sex offender registries, this book is obviously a must-read for any and everyone concerned with sentencing law and policy surrounding sex offenses. But, as the title and description above details, this book covers a lot of ground that justifies everyone interest from everyone who works in or around modern criminal justice systems.
"Commission asks: Is a crime worse if a child sees it?"
The title of this post is the headline of this interesting local article from Virginia. Here are the details:
If Matthew R. Nash is convicted of this summer's Virginia Beach carjacking, he could get additional prison time for the mere fact that a toddler in the back seat became a witness to the event. Some judges have begun tacking on additional months or years of prison time when a crime occurs in the presence of a child, even though there's nothing in sentencing guidelines that requires it.
The state is now trying to figure out how often crimes occur in front of children in anticipation of possible legislation to require additional incarceration if children witness crimes. For the study, the Virginia Criminal Sentencing Commission asked commonwealth's attorneys to supply data on crimes committed in the presence of children, but it has been slow going....
The commission embarked on the study, believed to be one of the first in the country, after getting increased reports of judges imposing greater sentences in crimes that occur in front of children. The commission wants to determine exactly how often it happens. "I think it's part of a whole package that's presented when sentencing a defendant," Suffolk Commonwealth's Attorney Phil Ferguson said. "If you're committing a crime in front of children, then you're teaching children that it's OK to commit criminal acts."
Defense attorneys typically object to such sentencing enhancements because it's not an aggravating factor under the state's sentencing guidelines. Norfolk attorney James Broccoletti said he's seeing it more often, particularly in drug cases. He said he had a murder case several years ago in which a jury and judge imposed additional time for the defendant, Ericka Parks, because she shot and killed another woman in front of the victim's baby. He called the 25-year prison term "extremely harsh." "It does have an impact," he said.
So, dear readers, here is the question to start the work week: should sentencing guideline systems formally include a sentencing enhancement for committing a crime in front of a juvenile?
August 23, 2009
New Heritage Foundation report defending juve LWOP sentences
I just learned of a timely new report released this past week by The Heritage Foundation on the topic of life sentences for certain juvenile offenders. The report, which is available at this link, is titled "Adult Times for Adult Crimes: Life Without Parole for Juvenile Killers and Violent Teens," and is authored by Charles Stimson and Andrew Grossman. As its title suggests, this lengthy report reads like an amicus brief in support of states seeking to defend the use of LWOP for juve offenders in the upcoming SCOTUS cases Graham and Sullivan.
The report has an executive summary that starts this way:
Life without parole for the very worst juvenile offenders is reasonable, constitutional, and (appropriately) rare. In response to the Western world’s worst juvenile crime problem, U.S. legislators have enacted commonsense measures to protect their citizens and hold these dangerous criminals accountable. Forty-three states, the District of Columbia, and the federal government have set the maximum punishment for juvenile offenders at life without the possibility of parole. By the numbers, support for its use is overwhelming.
Nonetheless, its continued viability is at risk from misleading lobbying efforts in many states and court cases that seek to substitute international law for legislative judgments and constitutional text.
Emboldened by the Supreme Court’s Roper v. Simmons decision, which relied on the Eighth Amendment’s “cruel and unusual punishments” language to prohibit capital sentences for juveniles, anti-incarceration activists have set about extending the result of Roper to life without parole. If they succeed, an important tool of criminal punishment will be eliminated, and all criminal sentences could be subjected to second-guessing by judges, just as they are in capital punishment cases today.
The most visible aspects of this campaign are a number of self-published reports and “studies” featuring photographs of young children and litigation attacking the constitutionality of life without parole for juvenile offenders — including two cases that the U.S. Supreme Court has agreed to hear in its 2009 term.
Because the activists have monopolized the debate over life without parole, legislatures, courts, the media, and the public have been misled on crucial points. For example, dozens of newspaper articles, television reports, and court briefs have echoed the activists’ assertion that 2,225 juvenile offenders are serving LWOP sentences in the United States, despite that this figure is nothing more than a manufactured statistic. This report is an effort to set the record straight. It provides reliable facts and analysis, as well as detailed case studies, with full citations to primary sources.
Other recent posts on juve LWOP and the Graham and Sullivan cases:
- NYTimes coverage of very young lifers
- Does Roper suggest young juve LWOP is unconstitutional?
- Juves serving life terms
- The next issue in sentencing of juveniles?
- New HRW report assailing juve LWOP in California
- LDF report documents disparities in juve LWOP in Mississippi
- SCOTUS grants cert in Sullivan, juve LWOP case
- The (unpreserved?) procedural issues in Graham juve LWOP case
- What might (and should) DOJ and other potential amici say about Graham and Sullivan?
- Analyzing the cert grants in both Graham and Sullivan
- House hearing on bill to eliminate juve LWOP sentences
- Gearing up for the SCOTUS juve LWOP cases on the horizon
Notable local tales on the costs of seeking the punishment of death
Two local stories today from two states with notable and dynamic track records with the death penalty provide a window into some of the economic realities that surround efforts to implement the ultimate punishment.
First, consider this piece from the Atlanta Journal-Constitution, which is headlined "State can't afford to defend Gwinnett capital murder case." Here is how it starts:
Gwinnett County prosecutors want the death penalty for a Vietnamese immigrant accused of killing a Lilburn man and his 2-year-old son by shooting each in the back of the head. But the case, now four years old, is stalled because the state cannot fund Khan Dinh Phan’s defense.
Now before the Georgia Supreme Court are these pressing questions: Can the state seek to put a man to death if the state can’t afford to defend him? Can the trial judge strike the prosecution’s motion to seek the death penalty or, even more extreme, dismiss all charges because the state doesn’t have the money to represent the accused?
The Supreme Court’s answer to Phan’s pre-trial appeal could have profound implications for the death penalty in Georgia, which is in the throes of a prolonged budget crisis and has struggled to fully fund its nascent public defender system.
Similarly, consider this piece from the Arizona Daily Star, which is headlined "Justice for killer costly for taxpayers." Here is how it begins:
By the time convicted double murderer Robert Moody, 50, is resentenced in December, his victims will have been dead 16 years and Pima County taxpayers will have spent more than $500,000 ensuring that his civil rights were protected.
David Berkman, Pima County's chief criminal deputy county attorney, said county prosecutors reserve the death penalty "only for the worst of the worst" killers, and only make that decision after a panel of experienced attorneys discusses whether the facts of the case indicate seeking a death penalty is appropriate. And Berkman noted those discussions never involve the potential cost of such cases.
But Pima County Public Defender Robert Hirsh says that even though the course that Moody's case took over the years was unique, the case is a good example of the foolishness of seeking the death penalty. "What Mr. Moody did was reprehensible. He killed two innocent people absolutely without any justification, but what difference does it make to try and kill him?" Hirsh asked.
Some recent related posts on the costs of capital punsihment:
- Georgia struggles to pay for a costly capital system
- The challenging economics of death causing problems in Chicago
- Great new (though still dated) examination of the death penalty and plea bargaining
- CNN now talking about the costs of the death penalty and state reforms
- States considering laying off the death penalty during tough economic times
- The economic case against the death penalty getting more and more attention
- More discussion of cost concerns in debates over the death penalty
- Capital case cost concerns continue to inform reform debate
- Still more discussion of the costs of the death penalty
- "Opponents Focus On Cost In Death Penalty Debate"
- What might 2009 have in store for . . . the death penalty in the US?
"Thousands languish in crowded jail"
The title of this post is the headline of this effective article in today's Houston Chronicle. Here is how it starts:
More than half of the 11,500 inmates crammed into the Harris County Jail have not yet been found guilty of a crime but await their day in court confined with convicted criminals in conditions that repeatedly flunk state and federal safety inspections.
The most common accusation against them: possession of a crack pipe or minuscule amount of drugs.
Though the U.S. Constitution guarantees the right to a speedy trial, at least 500 county inmates have been locked up for more than a year as they wait to be judged, according to an analysis of inmate data by the Houston Chronicle.
About 1,200 have been jailed six months or more though many face only minor felony charges, such as bouncing checks, credit card fraud, trespassing or even civil violations. In fact, around 200 inmates, theoretically innocent until proven guilty, appear to already have served more than the minimum sentence for the crime they allegedly committed, based on the newspaper's analysis of inmate data provided by the Harris County Sheriff's Office.
Interesting review of medical furloughs from Alabama's prisons
This story from today's Montgomery Advertiser, which is headlined "It's tough for terminally ill inmates to receive medical furloughs in Alabama," provides an effective review of how one state is dealing with the challenging intersection of health care and prisons costs. Here are some excerpts:
Almost a year ago Alabama passed a law that would allow terminally ill inmates a chance to die at home and, it was hoped, save the state a little money. But the eligibility criteria for the new medical furlough are so strict that it could be a long time before the state Department of Corrections sees significant savings.
When Alabama passed its law last year, it became one of 36 states to provide a medical furlough for incapacitated or terminally ill inmates.
Ruth Naglich, associate commissioner on health services for the department, said when the bill was first proposed, 120 of the state's 25,000 inmates were identified, but that number shrank once the final law was in place. In a year's time, the state has released three terminally ill inmates, and they were just released this summer.
The first medical furlough release, Omar Rahman, was so ill that he died 30 hours after his release. He was serving a life sentence and had been in prison since 1982, according to the department's records. The other two inmates who have been furloughed are alive.
So who's not eligible? Sex offenders and those convicted of capital murder. "The number of prisoners eligible was brought down, particularly when they took out sex offenders," Naglich said.
And even if you are an inmate who is technically eligible -- no identifiable risks, no warrants in other states, no sentencing restrictions -- Naglich said the state is challenged to find somewhere to put you. "Some inmates simply don't have any family left," she said. "And if they have family left, they might not have the means or ability to care for the individual as the bill requires."...
Larry Spencer, an assistant professor of criminal justice at Alabama State University, said the drafters of the state's medical furlough program are cautious for a reason -- prisoner furloughs are risky business.... Spencer said the state has to look at a lot of different things to ensure that it is making the right call, including an inmate's criminal history, what type of adjustment the inmate made in prison and how sick he or she really is....
Naglich said there are 170 inmates who are suffering from a debilitating or terminal illness, but there are 6,000 statewide who are in some kind of chronic care clinic. She said a patient who receives dialysis three times a week and has other related illnesses costs the state between $60,000 and $65,000 a year.
An inmate with cancer might cost the state $68,000 and an inmate who has a stroke and must use a wheelchair for the rest of his or her life could cost the state an extra $45,000 to $50,000 because of extra staff, equipment and nutritional needs.
Some related posts:
- Passing prisoners (and the health-care buck) to nursing homes in Ohio
- Do prisoners get better health care than poor?
- Fascinating fights over how to pass the prison buck in California
- What should Florida and other states do with all their old sex offenders?