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September 5, 2009

"Cash-strapped states revise laws to get inmates out"

The title of this post is the headline of this effective article from today's Los Angeles Times.  Here is how it gets started:

After decades of pursuing lock-'em-up policies, states are scrambling to reduce their prison populations in the face of tight budgets, making fundamental changes to their criminal justice systems as they try to save money.  Some states are revising mandatory-sentencing laws that locked up nonviolent offenders; others are recalculating the way prison time is counted.

California, with the nation's second-largest prison system, is considering perhaps the most dramatic proposal -- releasing 40,000 inmates to save money and comply with a court ruling that found the state's prisons overcrowded.

Colorado will accelerate parole for nearly one-sixth of its prison population.  Kentucky has already granted early release to more than 3,000 inmates.  Oregon has temporarily nullified a voter initiative calling for stiffer sentences for some crimes, and has increased by 10% the time inmates get off their sentences for good behavior.

The flurry of activity has led to an unusual phenomenon -- bureaucrats and politicians expressing relief at the tight times. "The budget has actually helped us," said Russ Marlan, a spokesman for the Corrections Department in Michigan, which increased its parole board by 50% this year to speed up releases. "When you're not having budget troubles, that's when we implemented many of these lengthy drug sentences and zero-tolerance policies [that] really didn't work," he said.

Some recent related posts:

September 5, 2009 in Scope of Imprisonment | Permalink | Comments (1) | TrackBack

"Not Innocent Enough: The elusive search for the sufficiently innocent death-row victim"

The title of this post is the headline of this Slate article by Dahlia Lithwick, which connects the recent death penalty stories surrounding Troy Davis and Cameron Todd Willingham.  Here is how it starts and ends:

For years, death-penalty opponents and supporters have been on what now looks to be an ethical snipe hunt. Everyone was looking for a moment at which everything would change: a case in which a clearly innocent defendant was wrongly put to death....

In June, by a 5-4 margin, the Supreme Court ruled that a prisoner did not have a constitutional right to demand DNA testing of evidence in police files, even at his own expense. "A criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man," wrote Chief Justice John Roberts. And two months later, Justices Scalia and Thomas went even further than the chief justice following an extraordinary Supreme Court order instructing a federal court to hold a new hearing in Troy Davis' murder case, after seven of nine eyewitnesses recanted their testimony.  Scalia, dissenting from that order, wrote for himself and Justice Clarence Thomas, "[t]his court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent."

As a constitutional matter, Scalia is not wrong.  The court has never found a constitutional right for the actually innocent to be free from execution.  When the court flirted with the question in 1993, a majority ruled against the accused, but Chief Justice William Rehnquist left open the possibility that it may be unconstitutional to execute someone with a "truly persuasive demonstration" of innocence.  Oddly enough, for at least some members of the current court that question is now seemingly irrelevant: In Scalia's America, the Cameron Todd Willingham whose very existence was once in doubt is today constitutionally immaterial. Having waited decades for an innocent victim of capital punishment, the fact that we have finally found one won't matter at all. In this new America we can execute a man for an accidental house fire, while the constitution stands silently by.

Recent related posts:

September 5, 2009 in Death Penalty Reforms | Permalink | Comments (20) | TrackBack

September 4, 2009

Fascinating district court refusal to accept a (coercive?) plea deal

A helpful reader sent me copy of a fascinating five-page district court ruling from earlier this week in US v. Taliaferro, No. 08-cr-7-1-SM (D.N.H. Sept 1, 2009) (available for download below). The start and end of the order highlights why the full order is a must-read and why I look forward to hearing from commentors about the ruling:

In this case, the government has effectively removed the court from the sentencing process, and dictated the sentence to be imposed. Exercising its considerable charging discretion in the context of applicable statutory mandatory minimum sentences, the government extended an offer that the defendant could hardly refuse: be subjected to a mandatory minimum sentence of 20 years in prison, or accept a binding plea agreement providing for a sentence of 15 years (based upon a drug charge carrying a mandatory minimum of 10 years, with the government declining to file a notice of prior conviction under 21 U.S.C. § 851, which would trigger the mandatory sentence of at least 20 years)....

Based upon this record, ... the court would likely impose a sentence in the 8 to 10 year range, but for the applicable mandatory minimum, and certainly not more than 12 years. Therein lies the rub — if the court rejects the plea agreement without knowing whether the government will, in turn, withdraw from the plea agreement, imposition of a mandatory sentence even more severe than 15 years could result. That version of blind man’s bluff is inconsistent with fundamental notions of justice and fairness, and the court chooses not to play.

The Department of Justice is headed by a new Attorney General who, consistently with the position of the new Administration, has publicly declared a change in policy and approach both to the powder-crack cocaine disparity and mandatory minimum sentences....

This district also has a new United States Attorney. Given the publicly announced intent by the Department to take a new look at sentencing policy, particularly with respect to mandatory minimums and crack/powder disparities, and given the inflexible and seemingly out-of-step approach embodied in the plea agreement and underlying exercise of charging discretion in this case, I have directed that a copy of the sentencing hearing transcript be prepared and forwarded, along with this order, the presentence investigation report, and defendant’s sentencing memorandum, to the United States Attorney for his personal review and determination of the government’s intent to withdraw or not withdraw from the plea agreement should the court impose a sentence substantially below that called for in the agreement....

Sentencing in this case will be rescheduled after the United States Attorney has had an opportunity to review and consider the issue and advises the court whether the government intends to withdraw from the plea agreement should a sentence substantially below 15 years be imposed.

Download USDC order re overreaching ausa

September 4, 2009 in Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack

Split Seventh Circuit panel discusses importance of right to allocute

A split Seventh Circuit has an extended and interesting discussion of a defendant's right to allocute and lots of other notable issues in US v. Noel, No. 07-2468 (7th Cir. Sept. 4, 2009) (available here), which is yet another ugly federal child porn case.  The start of the dissenting opinion from Judge Williams provides a good summary of all the issues discussed in the Noel opinions:

I join my colleagues wholeheartedly in affirming Noel’s conviction and agree that any errors that may have occurred during trial were harmless due to the overwhelming evidence of his egregious conduct. I write separately, however, because I disagree with the panel’s conclusion that the denial of his right to allocute did not undermine the fairness of the judicial proceedings. Instead, I would remand for resentencing.  In light of Chief Judge Easterbrook’s concurrence, I also write to stress the importance of the presumption of prejudice afforded to a defendant who has been denied the opportunity to allocute, and to reiterate why the standard adopted in United States v. Luepke, 495 F.3d 443 (7th Cir. 2007), should remain the law of this circuit.

September 4, 2009 in Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Eighth Circuit affirms stat-max sentence for false statement in bankruptcy proceeding

With a struggling ecomony perhaps leading more and more businesses and persons to consider declaring bankruptcy, a ruling today from the Eighth Circuit in US v. Waldner, No. 08-2606 (8th Cir. Sept. 4, 2009) (available here), provides a sharp reminder why one must be truthful in any bankruptcy proceeding.  Here is the unofficial summary of the Waldner ruling from the Eighth Circuit's website:

District court did not err imposing a 16- level increase under Guidelines Sec. 2B1.1(b)(1)(I) as the court properly concluded the amount of loss exceeded $1 million; nor did the court err in imposing enhancements under Guidelines Sec. 2B1.1(b)(9)(c) for use of sophisticated means, Guidelines Sec. 3B1.2 for abuse of a position of private trust or Guidelines Sec. 3C1.1 for obstruction of justice; no error in denying request for reduction for acceptance of responsibility; even though the district court committed significant procedural error when it purported to use certain upward departures to calculate a new advisory guidelines range, the error did not require reversal or resentencing because the sentence was within the properly calculated advisory Guidelines range and was substantively reasonable; restitution order of $1.72 million affirmed.  Judge Bright, concurring.

Judge Bright's concurrence, fully reprinted here, captures the heart of the reasonableness sentencing issue:

The district court imposed the maximum possible penalty under the law (ten years).  I would note that Waldner is a first-time offender, a good wage earner in his earlier positions, and apparently a good father and husband.  The sentence does appear heavy but it was within the discretion of the district court.  Thus, I concur.

September 4, 2009 in Booker in the Circuits | Permalink | Comments (3) | TrackBack

US Sentencing Commmission makes official its ambitious priorities

Back in June, as detailed in this post, the US Sentencing Commission released its "notice of proposed priorities and request for public comment ... for the amendment cycle ending May 1, 2010."   As I noted back then, unlike in prior years in which the USSC seemed to be acting as if Booker never happened, this latest set of proposed priorities was much more modern and quite ambitious.

As detailed in this official statement, after "reviewing public comment received pursuant to the notice of proposed priorities,"  the USSC has now issued its "Notice of final Priorities" for its 2009-2010 amendment cycle.  Among the many highlights in this document are the USSC's stated priority to:

I am hopeful that the Senate will soon confirm President's pending nominations for the chair position and an open seat on the Commission.  The USSC should be and probably needs to be working at full strength in order to be able to move forward effectively on all the priorities.

September 4, 2009 in Federal Sentencing Guidelines | Permalink | Comments (3) | TrackBack

Interesting forfeiture ruling from split Washington Supreme Court

Thanks to this post at How Appealing, I saw this Seattle Times article, headlined "State Supreme Court: Parents can keep cars used by drug dealing son," which describes a notable forfeiture decision by a state high court.  Here is how the article begins:

A note to oblivious parents from a sharply divided state Supreme Court Thursday: If your son borrows your cars, and uses them to get high and deal drugs, the fact that you "should have known" he was operating a mobile, illicit pharmacy isn't enough for the government to seize your vehicles. You actually have to know.

The 5-4 ruling by the state's high court Thursday means Alan and Stephne Roos, of Bothell, will get to keep their 2004 Nissan Sentra and 1970 Chevy Chevelle, which their adult son, Thomas, had been using to peddle drugs in 2005.  But the dissenters on the court said the ruling lets the Rooses get away with "burying their heads in the sand" about their son's criminal behavior.

The full ruling of the Washington Supreme Court, which includes this majority opinion and this concurring and dissenting opinion, is an interesting read because the justices split on what type of "knowledge" was required under the applicable state statute to permit this forfeiture.

September 4, 2009 in Criminal Sentences Alternatives | Permalink | Comments (1) | TrackBack

Lots of interesting criminology reading for a long weekend

I noticed via the SSRN criminology abstracts a lot of interesting-looking new papers:

September 4, 2009 in Recommended reading | Permalink | Comments (0) | TrackBack

September 3, 2009

Three-judge panel refuses to stay order requiring California to reduce its prison population

As detailed in this Los Angeles Times piece, a "panel of federal judges today denied state officials’ request to delay an order that they produce a plan to reduce California's prison population by 40,000 inmates."  Here is more:

Aides to Gov. Arnold Schwarzenegger have said they would take their request to the U.S. Supreme Court on Friday.

In denying the state’s request, the judges said they had been “more than patient with the state and its officials” and harshly criticized them for “conflicting representations” in court that have forced the cases to drag on.  “Further delays and obstruction will not well serve the people of the state, and will not be tolerated by this court,” wrote U.S. District Judges Thelton Henderson and Lawrence Karlton, and U.S. 9th Circuit Court of Appeals Judge Stephen Reinhardt.
In their order last month, the judges said overcrowding is the primary cause of substandard healthcare and mental health care in state prisons.  They required the state to produce a plan by Sept. 18 to relieve the overcrowding.

State officials, in requesting a delay, had said they would be wasting taxpayer resources putting together a plan that ultimately might be unnecessary after an appeal of the order. The appeal was filed separately today.

The judges noted that a proposal to reduce prison overcrowding has been approved in the state Senate and part of that plan passed the Assembly.  “Indeed, the state has already completed much of the necessary work to develop a plan that could satisfy much or all of our order,” they wrote.

Some recent related posts:

September 3, 2009 in Scope of Imprisonment | Permalink | Comments (5) | TrackBack

"Pa. lifers seeking clemency in wake of US ruling"

The title of this post is the headline of this new AP article discussing litigation and other developments surrounding possible clemency grants for those serving life sentences in Pennsylvania.  Here are excerpts:

Tyrone Werts earned a college degree, counseled at-risk teenagers, organized an anti-crime summit, sold Girl Scout cookies, and once prevented the rape of a teacher — all while serving a life sentence for second-degree murder and robbery.

Regarded as a model prisoner for nearly 35 years, Werts, 57, will appear before the state Board of Pardons on Thursday to ask for a commutation of his sentence. He and another inmate, William Fultz, also 57, are the first lifers to go before the board since a federal judge ruled in June that thousands of Pennsylvania inmates sentenced to life should have an easier path toward clemency....

Werts' backers are pinning their hopes on a June 11 ruling by U.S. District Judge A. Richard Caputo, who said the pardons board may not apply the tougher 1997 standard to inmates who committed their crimes before 1997 because the U.S. Constitution forbids ex post facto punishment.  The decision — the latest ruling in a 12-year-old lawsuit filed by the Pennsylvania Prison Society — could affect more than 3,000 of the 4,868 lifers in the state's prisons.  The pardons board has appealed.

The 1997 amendment requires that inmates sentenced to life must receive a unanimous vote of the five-member pardons board before the governor may consider their commutation request — giving a single board member the power to block any inmate's bid.  Before then, lifers needed only a majority vote to get their case before the governor.

Opponents of the referendum argue it deprives lifers of any meaningful chance to win clemency. Pennsylvania leads the nation in the number of inmates serving life sentences who were juveniles when they committed their crimes.  It's also one of only six states in which a life sentence automatically means life without parole — so commutation is the only way lifers who have already spent decades behind bars can get out of prison.

September 3, 2009 in Clemency and Pardons | Permalink | Comments (7) | TrackBack

Might the ugly Garrido case result in needed changes to sex offender registries?

This new article in the Wall Street Journal, which is headlined "Sex-Registry Flaws Stand Out," has me wondering and hoping that the horrid Phillip Garrido case might prompt needed reforms to ever-expanding sex offender registries. Here are snippets:

The case of Phillip Garrido, who allegedly held Jaycee Dugard in his backyard for 18 years despite monthly law-enforcement visits, is forcing California officials to acknowledge a fundamental problem with the state's sex-offender registry: The list keeps expanding, while the number of officials who monitor sex offenders has grown at a much slower rate.

There are now so many people on the registry it's difficult for law enforcement to effectively track them all, and "it's more helpful for law enforcement to know...who the highest-risk offenders are," said Janet Neeley, a deputy California attorney general and member of the state's sex offender board.

A December study of roughly 20,000 registered sex offenders on parole in California found 9% posed a "high risk" of reoffending, and 29% posed a "moderate-high" to "high" risk, said Ms. Neeley. But law-enforcement officials and academics say vast resources are spent monitoring nonviolent offenders rather than keeping closer tabs on more-dangerous ones.

California's sex-offender registry has ballooned to more than 90,000 people now from about 45,000 in 1994, according to the California attorney general's office. Not only has the number of law-enforcement officers failed to keep pace, but recent state budget cuts have forced some local agencies to cut officers assigned to sex offenders, according to the California Commission on Peace Officer Standards and Training.

The Santa Clara County Sheriff's Office, for example, said funding cuts have forced it to field only five officers dedicated to tracking sex offenders in the county, down from eight officers five years ago.

Last year, California's Sex Offender Management Board criticized the system as it stands in a 225-page assessment, highlighting failures in the collection and analysis of data on sex offenders. It's "difficult if not impossible" to track the effectiveness of registry laws, the report said....

California has been trying to sharpen its focus, but federal and state laws passed in 2006 offer conflicting rules for monitoring sex offenders, Ms. Neeley said.

Under its law, California has chosen to use a program called Static 99, which categorizes sex offenders based on their likelihood to reoffend.... Provisions in the federal Adam Walsh Act aim to move monitoring in the opposite direction, so that it's based solely on an offender's type of conviction, not on a complex assessment of risk.

That's problematic, said Jill Levenson, an associate professor at Lynn University in Florida who studies sex-offender registries, since it "overestimates risk for most people, and underestimates risk for people who pleaded down," or struck plea deals by admitting to lower-level crimes.

Now, the state Sex Offender Management Board is recommending that California forgo some federal funds and not adopt the law, which would add to the number of crimes requiring registration. "There is no available evidence to indicate that expanding California's list of registerable crimes would promote public safety," the board wrote in a recommendation, noting the federal law would create at least $32 million in costs to the attorney general's office and law-enforcement agencies without improving the system.

September 3, 2009 in Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

"Federal Judge Refuses To Take New Criminal Cases"

The title of this post is the headline of this NPR piece about a notable federal district judge's decision to reshape his docket.  Here are the basics from the piece:

A federal judge in Milwaukee has taken the unusual step of refusing to accept new criminal cases and recusing himself from existing ones, in a move observers say is about politics, impropriety and, possibly, hurt feelings.  Federal Court Clerk Jon Sanfilippo says the way he sees it, the reason Judge J.P. Stadtmueller is refusing criminal cases "really springs from one case."

Sanfilippo, the only person at the federal courthouse in downtown Milwaukee who was willing to talk about the situation, says it all started after a ruling in July by the 7th Circuit Court of Appeals. Prosecutors thought Stadtmueller showed bias in a gun case and took the rare move of asking the appeals court to remove him, which it did. Stadtmueller accused the U.S. attorney's office of judge-shopping.

The judge declined repeated requests for interviews; neither his colleagues on the federal bench nor the interim U.S. attorney for Milwaukee would comment.

Sanfilippo says since that ruling, Stadtmueller stopped taking new criminal cases from the government and recused himself from 22 existing ones.  He is still taking civil cases, however.  "He believes that he's acting appropriately under the circumstances, trying to provide a situation where there's no problem in terms of perception," Sanfilippo says, "and as this has been unfolding, he's been very adamant about making sure he has a full caseload."

My sense is that there is a lot to this (little?) story, and a lot of backstory to the story.  Rather than comment or speculate about the particulars, perhaps I should just encourage dialogue on the general question of whether and when it seems appropriate for an active federal judge to refuse to hear certain types or all types of criminal cases.

September 3, 2009 in Who Sentences? | Permalink | Comments (12) | TrackBack

US Sentencing Commission regional hearing in Chicago next week

As detailed in this brief public notice, the US Sentencing Commission has another one of its regional public hearings on tap for next week.  This fourth regional public hearing is scheduled for Sept 9-10, 2009, in Chicago will be held in the Ceremonial Courtroom of the Everett M. Dirksen United States Courthouse.

As detailed in this official agenda, a fascinating group of invited witnesses are scheduled to testify regarding federal sentencing policy, including famed US Attorney Patrick J. Fitzgerald who is known well from his prosecution of Scooter Libby and Rod Blagojevich.  The panel that seems especially worth attending is the one providing a "View from the Appellate Bench" and which has Judges Danny Boggs and Jeffrey Sutton of the Sixth Circuit and Chief Judge Frank Easterbrook of the Seventh Circuit testifying about their views on the post-Booker world.

Notably absent from this regional session is any "View from Academia," which I believe was part of each prior regional hearing.  It seems the members of the US Sentencing Commission got tired of hearing how the federal sentencing system looks from the ivory tower.

September 3, 2009 in Who Sentences? | Permalink | Comments (3) | TrackBack

Lots of interesting news and notes about parole

Article-1210865-064572B8000005DC-832_634x365 In the news today are a number of interesting items about parole:

The item about Manson follower Susan Atkins being denied parole despite being terminally ill and paralyzed over most of her body is getting the most media attention, in part because of the visuals the even produced and in part because of the recent controversial decision by Scotland to grant compassionate release to the Lockerbie bomber.  This article from across the pond, which is headlined "Scotland take note: 'Manson Family' killer Susan Atkins loses 18th bid for parole DESPITE being on her death bed," highlights this comparative dynamics surrounding this notable parole denial story.

But the other pieces linked above should not be overlooked.  For example, the start of the piece from Virginia highlights the challenges of balancing competing concerns and pressures in modern parole decision-making:

Some 706 parole-eligible inmates are being been held longer in Virginia prisons, at $24,332 each per year, than recommended under the current no-parole sentencing guidelines.

In a report to the General Assembly on Tuesday, the Virginia Criminal Sentencing Commission also found that as of the end of last year, there were 575 prison inmates eligible for geriatric release.

However, the report also found that of the parole-eligible inmates still in prison, 88 percent were convicted of violent crimes and nearly 80 percent have not yet served longer than stipulated under the sentencing guidelines.

And this part of the editorial from Florida is especially interesting given that Florida's affinity for sentencing some juvenile offenders to life without the possibility of parole is the subject of a big Supreme Court case this coming Term:

Twenty-six years ago in Florida, the Legislature passed a landmark criminal-sentencing bill that called for the gradual elimination of parole.  Since 1995, no one sentenced to life in prison is eligible for parole. 

Today, no inmates sentenced to state prison are eligible for early release under the conditions and supervision of the parole system.  The changes occurred in response to inconsistencies in the application of parole policies, recidivism by inmates granted release and widespread dissatisfaction with the criminal justice system.

Still, there are several reasons for Florida to reconsider its blanket policies against the use of parole.  One of the most compelling reasons is Florida's status as the state having by far the most juveniles, 77, imprisoned for life for crimes that didn't involve homicide.

A bill filed by state Rep. Mike Weinstein, a Republican who works in a prosecutor's office, would make 68 of Florida's 100,000 inmates eligible for parole.  Those inmates were convicted of "non-homicide" offenses committed when they were 15 or younger and have served at least eight years....

[A] state and society should also recognize that juveniles so young that they aren't permitted — for their own good — to drive a car, buy cigarettes or alcohol or enter into contracts, ought to be given some considerations in sentencing and have an opportunity for rehabilitation and redemption.

Weinstein's bill would provide, but not mandate, those opportunities and a chance at parole under strict conditions.  A bill in Congress — HR 2289 — would do the same....

Whether or not the juveniles serving life terms for non-murder charges would be suited for parole and release from prison, no one knows.  Weinstein's bill would at least let the Parole Commission make that determination.

September 3, 2009 in Sentences Reconsidered | Permalink | Comments (3) | TrackBack

September 2, 2009

My (now published) take on the MPC sentencing revisions

This past January, I was part of a panel at the 2009 AALS conference talking about the American Law Institute's on-going revision of the sentencing chapters of the Model Penal Code.  As detailed here, the Florida Law Review has now published the terrific articles that emerged from that panel.  My little article is titled "The Enduring (and Again Timely) Wisdom of the Original MPC Sentencing Provisions."  This article can be downloaded below, and here is how it gets started:

My favorite bit of folk wisdom is “if it ain’t broke, don’t fix it.”  However, when considering the ongoing revisions to the Model Penal Code: Sentencing (MPCS) provisions, a corollary comes to mind: “fix what’s really broke, and don’t risk breaking what ain’t really broke.” Unfortunately, the MPCS revisions fail to address what is really broken in modern American sentencing systems, and they overlook enduring (and still timely) wisdom found in the original MPCS.  Thus, I view the MPCS revision as at best, a missed opportunity; at worst, the codification of problematic modern sentencing dynamics.

Download Berman_MPCS article

September 2, 2009 in Purposes of Punishment and Sentencing | Permalink | Comments (6) | TrackBack

Lots of great, and very different, new stuff at some blog favorites

Lots and lots of great new posts can be found at these often great crim law blogs:

September 2, 2009 | Permalink | Comments (3) | TrackBack

"Race, Death and Disproportionality"

The title of this post is the title of this new piece I noticed on SSRN from Scott Howe.  Here is the abstract:

Statistical studies showing unconscious racial bias in capital selection matter under the eighth amendment.  In McCleskey v. Kemp, the Court appeared to shun such evidence as irrelevant to eighth amendment challenges to capital punishment.  Yet, this kind of evidence has influenced many of the Justices’ views on the constitutionality of the death penalty and has sometimes caused the Court to restrict the use of that sanction under the eighth amendment.  My goal, therefore, is to explain why statistical studies concerning race bias in capital selection have limitations as proof but also strong suggestive power that some death sentences amount to 'cruel and unusual punishments.'  Ultimately, I address how such studies, despite their limitations, might influence the Court in its regulation of the death penalty in the future.

My project proceeds in five parts.  Part I contends that the eighth amendment regulates capital selection not, as is commonly asserted, through a consistency mandate but, instead, through a deserts limitation — a mandate that only a person who deserves the death penalty should receive that sanction.  Part II shows how the capital selection process allows for multiple opportunities for reprieves of offenders who deserve the death penalty but also provides a two-phase trial to try to ensure that nobody receives a death sentence who does not deserve it.  Part III briefly describes the statistical efforts to determine whether racial biases concerning defendants and victims influence decisions along the selection process.  Part IV shows, however, why studies that do not focus on the capital sentencer have only limited eighth amendment meaning and why even studies that do have that focus cannot establish with much certainty that violations of the deserts limitation frequently occur.  Statistical evidence of racial bias even at the sentencing trial might reflect mostly the effect of race in the dispensation of merciful reprieves.  Yet, this Part also explains that such evidence can spur our intuitions that some sentencer findings of deserts underlying some death sentences, in addition to some reprieves, are racially influenced.  In fact, Part V contends that, despite the Court’s general unwillingness to acknowledge that racial-bias studies reveal that death sentences are sometimes disproportional, the studies have influenced the Court — and will continue to influence it — to confine the use of the death penalty.

September 2, 2009 in Death Penalty Reforms, Race, Class, and Gender | Permalink | Comments (3) | TrackBack

Justice Stevens' clerk hiring can start next round of SCOTUS speculation

Even though new Justice Sotomayor has not yet even heard her first case, this new AP article seems sure to start a new round of Supreme Court transition talk.  Here's the lead: "Supreme Court Justice John Paul Stevens has hired fewer law clerks than usual, generating speculation that the leader of the court's liberals will retire next year."  Because it makes sense for various reasons that Justice Stevens would decide to call it quits after the upcoming Term, I am sure this bit of news will prompt most everyone to begin to assume that President Obama will get another Supreme Court pick in 2010.

I think SCOTUS speculation might be especially dynamic and interesting this second time around because President Obama likely should and perhaps will feel less inclined to make a "safe" pick to replace Justice Stevens.  The first time around, President Obama's "short list" understandably was filled almost exclusively with women and minorities, and it seems he was also keen on nominating someone a judicial record.  With all those bases "covered" through his selection of Justice Sotomayor, and also with lots of notable academics working now in the Obama Administration, the realistic possibilities for a nomination this time around all but ensures that plausible "short lists" might grow to be very long.

Of course, all the big-time next justice speculation surely should wait until Justice Stevens actually indicates that he is going to retire.  But I doubt that it will.

Some recent and older posts on SCOTUS short-lists:

September 2, 2009 in Who Sentences? | Permalink | Comments (1) | TrackBack

Good news on crime victimization rates in 2008

Various folks expressed concern that the down-turn in the economy in 2008 could and likely would lead to an increase in crimes.  But, as this DOJ press release details, the latest, greatest statistics suggest that crime victimization decreased from 2007 to 2008.  Here is the encouraging news from the start of the press release:

The violent crime rate in 2008 — 19.3 victimizations per 1,000 persons age 12 or older — was unchanged from the previous year, the Bureau of Justice Statistics (BJS) in the Office of Justice Programs, U.S. Department of Justice, announced today.  The property crime rate declined during 2008 from 147 to 135 crimes per 1,000 households, primarily as a result of decreases in theft and motor vehicle theft.

In 2008, an estimated 4.9 million violent crimes (rapes or sexual assaults, robberies, aggravated assaults and simple assaults) occurred, as well as an estimated 16.3 million property crimes (burglaries, motor vehicle thefts and household thefts) and 137,000 personal thefts (picked pockets and snatched purses).  These offenses included both crimes reported and unreported to police.  With the exception of theft and motor vehicle theft, victimization rates for every type of crime measured were unchanged from the 2007 levels.

Violent and property crime rates in 2008 remain at the lowest levels recorded since 1973, the first year that such data were collected.  The rate of every major violent and property crime measured by BJS fell between 1999 and 2008.  The overall violent crime rate fell 41 percent and the property crime rate declined by 32 percent during the last 10 years.

The full statistical report is available in this new publication, which is titled "Criminal Victimization, 2008."  Now we can begin the usual debate over who and what accounts for (1) the fact that crime is now at record low levels in the US, and (2) the fact that there are still, on average, tens of thousands of serious crimes every single day in the US.

September 2, 2009 in Data on sentencing | Permalink | Comments (2) | TrackBack

California begins SCOTUS appeal process for federal ruling ordering prisoner release

This Sacramento Bee article details that California has begun the process for appealing the recent three-judge special panel ruling that called for a dramatic cut in California's prison population.  Here are the basics:

State lawyers said Tuesday they will try to take the issue of prison overcrowding to the U.S. Supreme Court rather than obey a court order to come up with a plan to reduce inmate population.  The lawyers, on behalf of Gov. Arnold Schwarzenegger and corrections officials, are asking the three judges who issued the order to put it on hold while the state seeks a high-court review.  They say the state should not have to spend some of its precious few funds to create a plan that should never have been ordered in the first place.

Facing a $1.2 billion shortfall in the corrections budget, officials need to focus their limited resources "on safely implementing that budget reduction," the lawyers insist.

When a three-judge court like this one is appointed to hear a matter under the federal Prison Litigation Reform Act of 1995, any appeal goes directly to the Supreme Court. Both sides agree that, if the high court accepts jurisdiction, it would be the first time it considered a case involving prisoners ordered released under the act.

In a motion filed Tuesday with the three judges, the state said it will wait until noon Friday to hear from them on a stay pending appeal. If the stay is denied or if they have not acted by then, the state will seek a stay from the Supreme Court, the motion says.

On Aug. 4, the three-judge court ordered the state to provide them by Sept. 18 a plan to reduce the population of its 33 adult prisons by up to 46,000 inmates within two years.  The system is operating at 190 percent of its 79,828 design capacity, and the judges found overcrowding is the primary reason care of sick and mentally ill inmates has descended to unconstitutional depths.

Tuesday's motion argues a stay should be granted on multiple grounds: The three-judge court was improperly convened; its finding regarding health care was erroneous; the order to reduce the population by more than 25 percent goes way beyond what is necessary, and since the order "is the first such prisoner release order to be issued under the PLRA," the Supreme Court should now have the opportunity to weigh in.

Thanks to Crime & Consequences, everyone can download at this link California's "Motion To Stay the Three-Judge Court’s August 4, 2009 Opinion And Order Pending Appeal and Memorandum Of Points And Authorities."

September 2, 2009 in Scope of Imprisonment | Permalink | Comments (5) | TrackBack

Garrido case leading to useful reflections and questions about sentencing practices

Often, one high-profile ugly crime by a repeated offender leads to an extreme reaction to an outlier case. This my be part of the story that follows the discovery of the remarkable crimes of the Garrido family, but we should not overlook the appropriate reflections and hard questions being asked in this wake of the discovery of this remarkable crime. Specifically, consider this effective item from Chuck Lane in the Washington Post, which is headlined "How Jaycee Lee Dugard's Tormentor Got Out." It provides a reminder of how different sentencing practices were decades ago when Phillip Garrido was sentenced for his first rape:

Thirty-three years ago, the law specifically provided that no prisoner could serve more than 10 years in the federal system without at least a chance at parole -- regardless of his original sentence. Garrido’s conviction, which came in Feb., 1977, was his first. The judge who sentenced him to 50 years may have been trying to signal parole officials who would later look at his case that this was no ordinary novice offender....

But ten years later, when an examiner from the U.S. Parole Commission arrived to see Garrido at the federal prison in Lompoc, California, those ghastly events were known to him only from the cold paper record. Though Garrido’s parole proceeding is sealed, typically federal parole examiners would spend about an hour interviewing the inmate. They would also look into a prisoner’s adjustment to prison life, as reported by prison officials, his work record, if any, and evidence of new-found responsibility. Perhaps one point in Garrido’s favor was his marriage-by-mail to Nancy Bocanegra, whom he met while she was visiting a relative serving time with Garrido.

Relatedly, given that Garrido was a registered sex offender, folks are also starting to ask hard questions about the efficacy of sex offender registries.  Specifically, consider these new articles from the New York Times and USA Today:

September 2, 2009 in Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Study suggests support for death penalty still strong despite innocence concerns

The title of this post is meant to be quite different from the headline of this new Los Angeles Times article, which is headlined "Californians' support for death penalty waning: A survey shows public support has dropped from 79% to 66%, as fears of executing the wrongly convicted escalate."  Here is more from the article:

A majority of Californians still favor the death penalty, but their support has waned from 79% to 66% over the last two decades as fears of executing the wrongly convicted escalate, a researcher reported Tuesday. The survey conducted by Craig Haney, a UC Santa Cruz psychology professor and lawyer, also showed that most Californians erroneously believe that it costs taxpayers less to execute condemned prisoners than to keep them locked up for life....

"My sense is that the whole issue of the death penalty is much more unsettled now than it has been in the past 20 or so years," said Haney, citing growing public discomfort with incidents in which innocent prisoners have been spared at the last minute -- or not at all....

Those who advocate retaining the death penalty argue that support for capital punishment has been stable in recent years, that only the interpretation of survey data is changing. "There hasn't been any major falloff," said Kent Scheidegger, legal director for the Criminal Justice Legal Foundation, which takes a conservative stance on penal issues. "If you look at the polls and analyze them properly you'll see that over the past 10 years support has been remarkably steady," he said.

Haney's findings were consistent with those of last month's Field Poll of the California electorate, in which 67% of respondents expressed support for the death penalty.

The professor queried 800 jury-eligible Californians in February and March for his survey.  It was funded by the National Jury Project and carried out by the Survey Research Center at the University of Virginia, with a 3.5% margin of error.

Asked if he had a personal opinion about the death penalty, Haney said his 30 years of work in the field had led him to the conclusion that capital punishment "is unnecessary and cannot be properly, fairly or effectively implemented."

I share Haney's sense that the issue of the death penalty is "unsettled," but I think that reality is mostly a function of the work of courts and effective abolitionists, not the result of significant shifts in public opinion.  As pollsters could report, any politician would be grateful to have a 66% approval rating.  As long as public approval for the death penalty remains this high even in a "blue" state like California, it seems unlikely that the public will be clamoring for significant changes to the modern death penalty in the US anytime soon.  Courts and political elites, however, may have a very different view and may be able to engineer capital punishment reforms even without broad public support.

September 2, 2009 in Death Penalty Reforms | Permalink | Comments (6) | TrackBack

September 1, 2009

New poll has majority saying alcohol is more dangerous than marijuana

Marijuana-Is-SAFER-book-cover This new report from Rasmussen, which is headlined "51% Rate Alcohol More Dangerous Than Marijuana," should give yet another boost toward efforts to legalize the (no-longer-?) wicked weed. Here are the basics:

Fifty-one percent (51%) of American adults say alcohol is more dangerous than marijuana, according to a new Rasmussen Reports national telephone survey. Just 19% disagree and say pot is worse. But 25% say both are equally dangerous. Just two percent (2%) say neither is dangerous.

Younger adults are more likely than their elders to view alcohol as the more dangerous of the two.

Fifty-three percent (53%) of women say alcohol is more dangerous than marijuana, compared to 48% of men. Men by a two-to-one margin over women say pot is riskier, but women are more inclined to say both are dangerous.

Unmarried adults are more critical of alcohol than those who are married. Those with children at home think alcohol is more dangerous than those without kids living with them.

Perhaps the main message of this new book (pictured in this post), titled "Marijuana is Safer: So Why Are We Driving People to Drink?," which has been recommended to me by many thoughtful folks has already gotten through to a majority of Americans.  Whether this message will lead to significant legal and sentencing reform, however, remains to be seen.

Some recent related posts:

September 1, 2009 in Drug Offense Sentencing | Permalink | Comments (8) | TrackBack

"Moral Sentiments and the Justification of Punishment"

The title of this post is the title of this interesting-looking new piece from Thom Brooks recently posted on SSRN.  Here is the abstract:

What is the relationship between our moral sentiments and the justification of punishment? One position is that our moral sentiments provide for punishment’s justification.  My focus will be on Adam Smith’s theory of punishment and the role that moral sentiments play in this theory.  First, I will argue that interpreters are mistaken to view Smith’s position as essentially retributivist.  In fact, he defends a unified theory where punishment serves retributivist, deterrent, and rehabilitative goals.  Secondly, I will argue that his view that punishment is warranted in cases where we should feel resentment fails to account for much of what we would want included in our criminal law.  I conclude that while Smith’s account is problematic, it nevertheless may point us toward a more moderate position. Moral sentiments may be relevant to criminal law, although they should not serve as the sole determinant of what should be criminalized and how crimes should be punished.

September 1, 2009 in Purposes of Punishment and Sentencing | Permalink | Comments (9) | TrackBack

Reactions to the NC ruling in Britt felon gun rights case

This new local article, headlined "Felon wins the right to own a gun: Narrow ruling causes big stir," reports on reactions to the North Carolina Supreme Court's 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 (discussed here). Here are excerpts:

The opinion applied only to Barney Britt, who was convicted of a drug crime in 1979, and it didn't have an immediate effect on the thousands of other felons in the state. Criminal defense lawyers who practice in federal courts said they don't know what effect, if any, the opinion will have on federal rules, which prevent felons from buying and owning weapons except when a state has restored that right....

Though the opinion focused just on Britt's case, both sides of the gun control issue saw the ruling as significant because the state's highest court found that Britt had a right to bear arms that trumped the state's ability to restrict him from owning any weapons.

Advocates spent Monday poring over the 5-2 decision in Britt v. State of North Carolina. The decision was seen as a victory for those who view government restrictions as too strict, while those in favor of tighter gun control described it as an alarming blow. "This has implications beyond just North Carolina," said Robert Levy of the Cato Institute, a Washington-based Libertarian think tank that opposes gun control. "North Carolina has now decided that some felonies are not so serious to result in deprivations of the right to defend oneself."

Roxane Kolar, director of North Carolinians against Gun Violence, said the decision was troubling. "I've never heard of this before, of a felon having an inalienable right to own a weapon," she said. "It's putting a lot of our state gun laws at risk."

The decision could spark a rush to local courthouses as felons try to have their rights to own and store firearms in their homes restored. Those with the best chance would likely be those with cases similar to Britt's; people convicted of nonviolent crimes who had their right to own a gun restored and then taken away with a 2004 law, said Jeanette Doran, a senior staff attorney with the N.C. Institute for Constitutional Law.

Legal e-mail message boards lit up over the weekend, with lawyers swapping tales of clients convicted of felony littering charges then barred from hunting deer for the rest of their lives.

The state legislature may address the issue with a bill introduced for the 2009-2010 session by Rep. Phil Haire, a Democrat from Western North Carolina, that would give limited hunting privileges to nonviolent felons....

The office of N.C. Attorney General Roy Cooper, who defended the state law in the case, declined to comment on the ruling....

Kolar of North Carolinians against Gun Violence expressed concern that judges would be the ones to decide whether felons could own guns, something she says gives too much discretion to the courts. Jim Woodall, the district attorney for Orange and Chatham counties, said he found the opinion worrisome and hoped it wouldn't be applied broadly to others. "They're carving out a one-person exemption," he said.

September 1, 2009 in Second Amendment issues | Permalink | Comments (14) | TrackBack

How will death penalty proponents respond to "Trial by Fire"?

I have now read this potent and must-read article, headlined "Trial by Fire: Did Texas execute an innocent man?", in this week's New Yorkerconcerning the Cameron Todd Willingham case.  In the article, David Grann effectively reviews all the reasons to suspect and fear that Texas executed an innocent man in 2004.  It is certain that death penalty opponents will respond to the piece by asserting this case now proves that a wrongful execution is a real possibility and that the death penalty should therefore be completely abolished.  But what is not certain is how death penalty proponents in Texas and elsewhere will respond to the piece.

One easy response for death penalty proponents is simply to assert and maintain that Willingham was in fact guilty, notwithstanding the evidence suggesting otherwise.  The New Yorker article reveals that a number of folks involved in the case's prosecution have already adopted this approach.  But, given the potent evidence now suggesting Willingham was wrongly convicted and executed and the weak evidence that supporting his guilt, I am not sure all responsible death penalty proponents will feel comfortable adopting this response.

The alternative, of course, is to admit the possibility that Texas executed an innocent man, but that this obvious tragedy does not alone justify getting rid of a punishment that is thought just for the truly guilty and may save many more innocent lives through its deterrent force.  This alternative seems to me to be the more "honest" response to the Willingham case, but it is also necessarily more controversial.

Notably, I am yet to see any discussion of the Willingham case on either Crime and Consequences or Pro-Death Penalty.com.

Related post:

September 1, 2009 in Death Penalty Reforms | Permalink | Comments (27) | TrackBack

The latest prison and sentencing reform news from California

As detailed in this local article, headlined "California Assembly passes prison-cut plan less sweeping than Senate's," the drama surrounding prison and sentencing reform in California continues apace. Here are some of the details of the latest news:

The California Assembly narrowly passed legislation Monday to alter the state's parole system and cut hundreds of millions from prison spending this year, but the plan may be doomed.

Senate President Pro Tem Darrell Steinberg has vowed to withhold concurrence until the Assembly acts on even deeper cuts and systemic changes. "The Assembly took a good first step today but it's not a complete package," Steinberg said in a written statement.

Assembly Speaker Karen Bass said she is confident that negotiations in coming days will produce legislation to end the impasse. The Assembly vote, 41-35, came more than a week after the Senate passed a plan that would cut prison spending by about $220 million more than that approved Monday by the lower house.

Both the Assembly and the Senate proposals are designed to reduce caseloads of parole officers from 70-to-1 to 45-to-1, partly by easing supervision of lower-risk offenders who have not committed violent or sexual offenses. Both prison plans also would allow prison inmates to earn up to an additional six weeks in sentencing credits by completing education, vocation or rehabilitation programs in prison.

Under both plans, Gov. Arnold Schwarzenegger would turn over up to 8,500 noncitizen felons to federal authorities for deportation, and some felony probation violators would be housed in county jails or local treatment programs rather than in prisons. Each legislative house vows that its plan would increase public safety by focusing supervision on the most serious offenders.

Republicans oppose both the Assembly and Senate budget-cutting plans, saying that few felons truly are "low risk" and that easing their incarceration or supervision could endanger public safety. "I don't want a state-sanctioned jailbreak in my backyard," said Assemblyman Joel Anderson, R-Alpine. "This is not a bill about being soft on crime," countered Assemblywoman Julia Brownley, D-Santa Monica. "This is a bill about being smart on crime."

The Senate plan, unlike the Assembly version, calls for creation of an appointed commission to overhaul sentencing guidelines.

Some recent related posts:

September 1, 2009 in Scope of Imprisonment | Permalink | Comments (0) | TrackBack

August 31, 2009

If you ever wondered what might happen if you sold balg eagle feathers...

this new Justice Department official press release, titled "Arizona Man Sentenced for Selling Bald Eagle Feathers," provides an answer:

Cedric E. Salabye of Dilkon, Ariz., was sentenced Friday in federal court in Phoenix for selling 11 bald eagle tail feathers, the Justice Department announced today.  Salabye pleaded guilty on April 23, 2009, to one count of a federal indictment charging him with selling eagle feathers in violation of the Bald and Golden Eagle Protection Act.  Judge David G. Campbell of the U.S. District Court for the District of Arizona sentenced Salabye to five years of probation, six months of home confinement and 150 hours of community service.

At the time Salabye committed the violation in 2006, the bald eagle was listed as threatened under the Endangered Species Act.  The bald eagle was removed from protection under the federal Endangered Species Act in 2007.  However, two other federal laws still provide protection for the bald eagle — the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act.

Eagles and other protected migratory birds are viewed as sacred in many Native American cultures and the feathers of the birds are central to religious and spiritual Native American customs.  By law, enrolled members of federally recognized Native American tribes are entitled to obtain permits to possess eagle parts for religious purposes, but federal law strictly prohibits the sale of bald and golden eagles or their feathers and parts under any circumstance.  The U.S. Fish and Wildlife Service operates the National Eagle Repository, which collects eagles that die naturally, by accident or other means, to supply enrolled members of federally recognized tribes with eagle parts for religious use.

"The buying and selling of the feathers of bald eagles, our nation’s symbol, is illegal and those who choose to ignore those laws will be prosecuted," said John C. Cruden, Acting Assistant Attorney General for the Justice Department’s Environment and Natural Resources Division.

August 31, 2009 in Offense Characteristics | Permalink | Comments (3) | TrackBack

"Links to Sex Crimes to Follow Texas Suspects"

The title of this post is the headline of this interesting article in today's Wall Street Journal.  Here is how it begins:

Desirée Wood gave up hope that the man who raped her 20 years ago in Dallas would ever be caught and sentenced for the crime. Now, she says, she has reason to believe her attacker might see some form of justice, after all.

On Tuesday, a law takes effect in Texas that lets prosecutors and parole boards for the first time see DNA evidence that links a suspect to an old sexual assault, even though the statute of limitations has expired on the case and the suspect was never tried. Previously, there would be no record linking the suspect to the old crime.

Supporters of the law, the first of its kind in the country, hope it means that suspects in those old cases will face more-vigorous prosecutions and sterner parole boards should they find themselves in trouble with the law again. Opponents say the law could rob suspects of due-process rights.

And here is how the piece articulates the due process concerns with this new Texas law being articulated by others:

The law has its critics. The American Civil Liberties Union is concerned that it could punish suspects without the benefit of due process.  After objections from the ACLU, the proposed law was revised to allow only law-enforcement agencies to access DNA information linking someone to an old sexual assault.  The law also allows suspects to petition for removal of the information from their files if they believe it has been wrongly included.

The ACLU still has concerns about how the information could be used.  "This is something we will definitely be monitoring to make sure there aren't negative unintended consequences," said Rebecca Bernhardt, policy director of the Texas ACLU.

August 31, 2009 in Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

Will new evidence of Texas executing an innocent man alter modern death penalty debates?

As detailed in this new New York Times editorial, headlined "Questions About an Execution," more folks are coming to the view that Texas executed an innocent man in 2004.  The editorial provides the basic facts and notes the standard abolitionist "innocence" argument that now seems stronger:

People should have no illusions about the brutal injustice of the death penalty after all of the exonerations in recent years from DNA evidence, but the case of Cameron Todd Willingham is still shocking.

Mr. Willingham was executed for setting a fire that killed his 2-year-old daughter and 1-year-old twins, but a fire expert hired by the State of Texas has issued a report casting enormous doubt on whether the fire was arson at all. The Willingham investigation, which is continuing, is further evidence that the criminal justice system is far too flawed to justify imposing a death penalty.

After the fire, investigators decided, based in large part on burn patterns on the house’s floors, that it was intentionally set. Prosecutors charged Mr. Willingham, who escaped from the burning home, with capital murder. Mr. Willingham protested his innocence until the day the state killed him by lethal injection in 2004.

The following year, Texas created the Forensic Science Commission to investigate charges of scientific mistakes or misconduct, and the panel began looking into the Willingham case. It commissioned Craig Beyler, a nationally recognized fire expert, to examine evidence....

The report concluded that a “finding of arson could not be sustained.” The Forensic Science Commission is now asking the state fire marshal’s office for its response. It anticipates issuing a final report next year.

The commission is to be commended for conducting this inquiry, but it is outrageous that Texas is conducting its careful, highly skilled investigation after Mr. Willingham has been executed, rather than before.

And, this week's New Yorker has a this long detailed article on the Willingham case in which David Grann documents all the reasons why it should now be a lot easier for opponents of the death penalty to assert that at least one innocent person has been executed in the modern capital punishment era.

With nearly 1200 execution over the last three decades, I have long consider the claim that only guilty persons have been executed harder to believe than the claim that at least one innocent person has been wrongfully put to death.  But now it seems that abolitionists have a name and a face to associate with the sensible statistical assertion that even a careful death penalty system is bound to sometimes execute an innocent man.  Of course, even acknowledging Willingham's innocence, proponents of the death penalty can still assert that it seems we still get it right more than 99.9% of the time.  But will that be good enough as the modern death penalty debate goes forward?

August 31, 2009 in Death Penalty Reforms | Permalink | Comments (27) | TrackBack

Lots of notable new and timely Findlaw commentaries

The folks at Findlaw do a great job in its Writ section getting top academics to do timely commentaries on legal issues of current debate and interest.  Here are some commentaries from the last few weeks that ought to interest sentencing fans:

August 31, 2009 in Recommended reading | Permalink | Comments (1) | TrackBack

Sex offender driven to drink and drive by registration requirement

This little local story, headlined "Police: Pa. man drove drunk to Megan's Law meeting," is both funny and not-so-funny.  Here are the basics:

A convicted child sex offender has been charged with drunken driving because he allegedly showed up intoxicated when he registered under Megan's Law at a western Pennsylvania state police barracks.

State police in Greensburg say 37-year-old Jerry Cignetti, of Bradenville, showed up drunk on Friday.  Court records show he was convicted in Westmoreland County in 1998 for the indecent assault of a child under 13.  He was paroled but had to register as a sex offender once his sentence was completed.

The 1L Crim Law teacher in me is wondering if this might be the basis for an interesting (though surely losing) claim of necessity.

August 31, 2009 in Offense Characteristics | Permalink | Comments (3) | TrackBack

Dueling persectives on proposed California prison reforms and a new challenge

As highlighted in the links below, the California editorial pages are buzzing over the state's on-going debate over prison and sentencing reforms.  And, as these two pieces reveal, California lawmakers will be criticized no matter what they do (or don't do):

Relatedly, this new piece in the New York Times, headlined "California Officials Fear Abduction Case May Hurt Efforts on Parole," highlights how a single high-profile case may alter the on-going debate.  Here is how the piece begins:

The case of Phillip Garrido, a parolee and registered sex offender accused of abducting an 11-year-old girl and holding her hostage for 18 years, has become embroiled in the debate over legislation intended to reduce California’s inmate population.

I sure hope a whole bunch of folks end up writing lots of articles and books about this chapter in state sentencing reform, since it captures so many of the dynamic modern challenges of sentencing law, policy, politics and practice.

August 31, 2009 in Scope of Imprisonment | Permalink | Comments (4) | TrackBack

August 30, 2009

Will NC's new Racial Justice Act effectively kill the state's death penalty?

This interesting local article from North Carolina, which is headlined "New death penalty law concerns Pitt attorney," prompts the question of this post.  The piece provides one local prosecutor's perspective on the likely impact of North Carolina's new Racial Justice Act, and here are excerpts from the start and end of the article:

Pitt County's chief prosecutor said an adopted law is an attempt to stop death penalty prosecutions without doing away with the punishment. The Racial Justice Act, signed into law Aug. 11 by Gov. Beverly Perdue, seeks to prevent death sentences “sought or obtained on the basis of race.” It allows defendants to introduce statistical evidence that shows race was a significant factor in the decision to seek or impose a death sentence.

Pitt County District Attorney Clark Everett lobbied against the legislation earlier this year. The state already has sufficient safeguards in place to prevent or remedy racially motivated death penalty prosecutions, he said.

While proving racial bias is placed on the defendant, Everett said prosecutors will have to develop evidence to refute the claim. It will become a battle of statisticians, one claiming bias and another saying none exists. “This should be titled the Statisticians Relief Act of 2009 because it is going to make a lot of them a lot of money,” Everett said. “It's going to be a battle of statisticians, and it's going to cost the state millions.”

The decision to pursue a death penalty prosecution isn't made lightly, Everett said. Prosecutors must have evidence to support claims that aggravating circumstances were present when a murder occurred. These circumstances and evidence are unique to each case and can't be made to fit statistical models. “The goal should be the punishment fits the crime, not some statistical predictions,” Everett said. “Murders aren't committed following a statistical model.”

The Racial Justice Act is an attempt to end the death penalty without voting to end the punishment, Everett said.  “They are killing it with a thousand cuts,” Everett said.  The General Assembly should hold a simple yes or no vote on whether the death penalty should be abolished in the state, he said....

Everett said the Racial Justice Act won't prevent him from pursuing a death penalty case if the evidence supports seeking that punishment but it adds another layer of bureaucracy to the decision-making process.  “It makes it difficult to explain to survivors the process and what punishment they can expect in the near future,” he said. “It adds another layer of litigation and costs, and that's something I have to consider.  It doesn't appear at this time we have a workable death penalty in this state,” Everett said....

No executions have been carried out in North Carolina since August 2006 when the N.C. Medical Board barred doctors from being present for lethal injections.  The state sued the medical board and in May the state Supreme Court ruled in the state's favor.  However, executions won't resume until North Carolina's Council of State reviews the state's protocols for execution.  The council's review is currently facing a legal challenge.  

As this excerpt reveals, this article is rich with insight and irony.  First, it appears that lethal injection challenges more than this new Racial Justice Act has the North Carolina death penalty struggling to stay legally relevant.  Thus, whatever the NC Racial Justice Act might mean practically, the efficacy of lethal injection litigation blocking executions right now explains why the 167 persons on the state's death row seem unlikely to face their imposed punishment anytime soon.

Second, this local article highlights all the interesting practical dynamics that surround a capital Racial Justice Act.  As the prosecutor notes, the Act is not going to prevent him from seeking a death sentence in a specific case, though he is going to "have to consider" how the Act presents "another layer of litigation and costs."  This may be the real virtue (or vice?) of this sort of Act: local prosecutors will be thinking twice about racial issues concerning offenders and victims impacting decisions to pursue the punishment of death.

Finally, as is true for all capital punishment reforms, this new Racial Justice Act is likely to result in lots of (unpredictable?) litigation.  In the end, how state courts interpret and apply the new Act will determine if it has a major or minor impact on the operation of the death penalty in North Carolina.

Some recent related posts:

August 30, 2009 in Death Penalty Reforms, Race, Class, and Gender | Permalink | Comments (6) | TrackBack

Trickle-down realities of the prison economy in California

This local article from California, which is headlined "State prison cuts' effect on county jail feared," spotlights the trickle-down impact of most prison cuts at the state level.  Here are excerpts:

After four years of declines in the number of inmates held at the Sonoma County Jail, local authorities fear that an overhaul of the statewide prison system could increase the jail population by hundreds of inmates at an estimated cost of $1 million a year.

Lawmakers have until Sept. 11, the end of the legislative session, to save close to a billion dollars by decreasing the state's prison population, which is roughly double its intended capacity.

That has local criminal justice authorities and county leaders concerned that the Sonoma County Jail could fill with parolees who have violated parole and inmates who under today's regulations would be sent to state prison. “Increased victimization and a potential increase in the jail population is the big concern that law enforcement officials have,” Sonoma County District Attorney Stephan Passalacqua said. “In this day of limited resources, how do we deal with that?”...

Passalacqua, County Supervisor Mike Kerns and Assistant Sheriff Linda Suvoy, who runs the county corrections system, said [all] changes [impact] local law enforcement. “If you add inmates locally it's going to be a problem,” said Suvoy, citing staffing issues and costs of reopening units that have been closed. “The big question is how to pay for it and is the state really going to divert funding to the local governments to address those issues,” she said....

County Supervisor Shirlee Zane said there have not been any formal discussions about the local impacts of prison overhaul measures among county supervisors, but the worry is palpable, as the costs to a community are not just at the jail. “These impacts are going to be significant,” she said. “If we have 400 state prisoners coming back into the county, my hunch is well over 50 percent of them are going to need substance-abuse counseling and job assistance, and those services are being cut. Releasing prisoners and cutting services that are going to help them stay out of prison and gainfully employed is absurd.”

Kerns, though supportive of overhauling the state prison system, said he wished the state would find a way to do it in a way that didn't cost the county. “We will be lobbying against this (Senate bill),” he said. “It's going to cost us money we don't have. Basically it will mean we will have to expand existing facilities. It's going to cost us a lot more money and it's going to be much more difficult for us to provide resources.”

Some recent related posts:

August 30, 2009 in Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Plenty of blame to go around in high-profile failure of "supervised parole"

This big crime story of the past week concerned the discovery that convicted rapist Phillip Garridowas able to kidnap and keep a young girl in backyard dwellings for nearly two decades.  This is, of course, a sentencing story in many ways, and this Wall Street Journal article highlights how it repesents a remarkable high-profile failing of "supervised parole":

State and federal officials are investigating how a convicted kidnapper and rapist was able to hide captives in the yard of his Northern California home for 18 years while under supervised parole.

Authorities over the past decade had made surprise visits to the Antioch home of Phillip Garrido, who prosecutors allege kidnapped 29-year-old Jaycee Dugard when she was 11 and kept her in backyard dwellings until her discovery this week. Ms. Dugard, who police say had two children with her captor, was reunited Thursday with her family.

Despite supervision of Mr. Garrido by parole and probation officers, state and local law enforcement agencies acknowledged their failure to find Ms. Dugard earlier.  Contra Costa County Sheriff Warren Rupf said Friday that an officer had visited Mr. Garrido's home in 2006 after receiving a 911 call that said Mr. Garrido had people living in tents in his backyard and was "psychotic and had a sexual addiction." "We should have been more inquisitive," Mr. Rupf said at a news conference. "There are no excuses."...

Mr. Garrido had been sentenced in 1977 to 50 years in prison on federal charges and five years to life on state charges after he was convicted of kidnapping a woman in California 1976. He was found guilty of taking the woman to Reno, Nev., where he sexually assaulted her, according to the Nevada Department of Public Safety. After serving 11 years, a parole board released Mr. Garrido in 1988 and placed him on lifetime probation.

Gordon Hinkle, a spokesman for the California Department of Corrections and Rehabilitation, said Thursday that Mr. Garrido was supervised by a parole officer whose caseload was reduced to allow greater attention to high-risk parolees. Mr. Garrido wore a GPS ankle bracelet to monitor his whereabouts, he said. Mr. Hinkle declined to identify the parole officer, but said his agency is "very proud" of what the officer did in recent days to help arrest Mr. Garrido.

The case comes at a time when planned prisoner releases in states such as California and Michigan are renewing interest in parole boards and probation, which in some corrections systems can decide on early release. For the past 25 years or so, such boards have been out of style. Legislation in 1984 eliminated them for new federal cases due to concerns about disparate treatment of prisoners. At the state level, they were criticized for high-profile crimes committed by parolees. Michigan has since beefed up its parole board, and California is trying to figure out how to process early prisoner releases....

Mr. Garrido was under federal parole supervision when he allegedly kidnapped Ms. Dugard, according to a spokeswoman for the Nevada Department of Public Safety. Mr. Hinkle, the California corrections department spokesman, said Mr. Garrido was transferred to the custody of California's parole system in 1999.

Since then, state parole agents went to his home two or three times each month, sometimes unannounced, Mr. Hinkle said, and met with him at other locations. Mr. Garrido was "under pretty strict supervision," he said. "If everything seemed to be in order, [parole officers] take a quick look around and move on," he said. "It's not like you're going into a search situation where you're going to be throwing up mattresses and tearing up the refrigerator."

The parole and probation systems -- designed to keep close track of offenders -- have limitations, said Richard Wood, a former federal probation officer...."Some of the people you're seeing as a parole officer are very, very good at hiding what they're doing," he said. "Meeting them one or two hours a week doesn't do it."

Last year, the sheriff's department in Contra Costa County did a sweep of the residences of registered sex offenders to ensure they were complying with their release conditions. Eleven offenders were arrested, the department reported, but a visit to Mr. Garrido's house apparently didn't generate any suspicions, according to Contra Costa County officials.

August 30, 2009 in Sex Offender Sentencing | Permalink | Comments (5) | TrackBack