September 8, 2009
Another notable uptick in below-guideline sentences in latest data run from USSC
The US Sentencing Commission has some notable new sentencing data now up on its website. The USSC's latest data report, which can be accessed here, is described this way:
Third Quarter FY09 Quarterly Sentencing Update: An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced through the third quarter of fiscal year 2009. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published September 8, 2009)
The new data shows the continuation of a trend of an increase in below-guideline sentence (which I first noted in this post and which I tentatively predicted in this post right after President Obama's election). This data run shows another (still small but seemingly significant) uptick in below-guideline sentences imposed by judges. Specifically, in the three quarters just before President Obama's election, judges decided on their own to impose a below-guideline sentence in roughly 13.8% of all cases. In the three quarters since then, judges decided on their own to impose a below-guideline sentence in roughly 15.8% of all cases.
Of course, it remains the case that most below-guideline sentences still result from prosecutors requesting a below-range sentence (this happens in more than 25% of all cases). And, as has always been the reality in the federal sentencing system both before and since Booker, one can identify a number of large inter-circuit and inter-district variations in how many sentences fall within or outside calculated guideline ranges.
The latest data might be spun in lots of different ways, and it will be especially interesting to see how the on-going internal study group inside the Justice Department characterizes and responds to these trends.
"A Move to Register Sex Offenders Globally"
The title of this post is the headline of this new piece in Time. Here is how it gets started:
While the world's attention was focused on Phillip Garrido, who is accused of abducting 11-year-old Jaycee Lee Dugard in 1991 and holding her hostage for 18 years as a sex slave, three other alleged sexual predators were quietly brought back to the United States to face prosecution for abusing countless children in Cambodia. The horrifying ordeal of Garrido's victim is now well documented; however, the stories of an estimated 1.8 million other children worldwide who are forced into the multi-billion dollar commercial sex trade every year remain largely unheard.
One of the men arrested in Cambodia, Jack Sporich, 75, spent nine years in a California prison for molesting as many as 500 boys during camping trips. Although Sporich was placed on a public registry and barred from living or working within 1,000 feet of a school or a child-care center anywhere in the U.S., Cambodian authorities were not notified when Sporich relocated to Phnom Penh in 2006. Sporich was arrested after an investigation by a local agency — Action Pour Les Enfants-Cambodia — alleged that he had lured three Cambodian boys aged 9 to 12 to his home with toys and candies. Court documents state that Sporich also enticed them by dropping Cambodian currency in the street as he rode along on a motorbike.
The case has reinvigorated support for H.R. 1623, the "International Megan's law," which Rep. Chris Smith, a New Jersey Republican, introduced in March 2009. If passed, the bill would alert officials abroad when U.S. sex offenders intend to travel, and likewise encourage other countries to keep sex offender lists and to notify the U.S. about offenders' travel plans to the United States. U.S. law can grab American predators overseas. Sporich, along with Ronald Boyajian, 49, and Erik Peeters, 41, were charged under the PROTECT Act, which was enacted six years ago to strengthen federal laws related to predatory crimes committed outside the U.S. (A federal magistrate ordered the three held in custody until their arraignment on Sept. 21. Each could face up to 30 years in prison per victim if convicted.)
But human rights organizations say their alleged crimes never should have occurred because all three men were previously convicted of sex offenses in the U.S. and listed in the domestic sex offender registry. "Sex offenders still think they can come to East Asia and commit new crimes with impunity," says Giorgio Berardi, Program Officer for Combating Child-Sex Tourism at ECPAT International, an organization working to eliminate child pornography, prostitution and trafficking. "We need far better collaboration between countries to prevent sexual exploitation of children."
Updated supplement for Sentencing Law and Policy casebook now available
As a new school year gets underway, I am happy to be able to share an updated electronic supplement providing additional materials to accompany the second edition of the Sentencing Law and Policy casebook. Anyone can download this 2009-2010 supplement below.
This updated supplement includes edited versions of Kennedy, Kimbrough and Gall, as well as lots of notes covering various major sentencing developments from the past few years. My co-authors and I hope that adopters of our text (and others) find this new, updated supplement useful, and we welcome comments and suggestions.
"Judges Punish Wall Street as Regulators Just Talk About Reform"
The title of this post is the headline of this interesting Bloomberg piece that suggesting that federal sentencing judges are playing a central role in responding to the recent economic crash. Here is how the piece gets started:
As the White House and Congress debate how to regulate financial firms to avoid another economic crisis, judges have assumed the point position in punishing Wall Street for causing the worst recession since the 1930s.
The executive and legislative branches have been discussing reforms such as more regulation of hedge funds and transparency for derivatives as a response to the financial crisis that began a year ago. As that battle with a reluctant Wall Street inches forward about how to prevent another disaster, judges are taking the first steps toward the same goal, punishing executives and issuing rulings with national impact....
“Judges have lifetime appointments and are freer to act on their conscience than regulators,” said Charles Elson, chair of the University of Delaware’s corporate-governance center. Judges can act more decisively than regulators or politicians because they’re “insulated from the political process,” he said.
Free from the pressures of lobbyists, judges typically refrain from showing emotion or expressing opinions during court proceedings to appear impartial. During sentencings in criminal cases, they sometimes let their hair down about their feelings about the damage Wall Street firms or their executives did.
China struggles with drunk driving sentencing
As one who is always concerned with the US approach to sentencing drunk driving, I was intrigued to see this AP story from China concerning that country's struggle with this crime and effective punishments. Here are excerpts from the piece:
An appeals court in China overturned the death penalty Tuesday in a drunk driving case, sentencing the defendant instead to life imprisonment. Sun Weiming, 30, was sentenced to death after being convicted for a fatal accident last December that killed four people and injured another in southwestern Chengdu. It was reportedly the first time a death penalty had been given in a drunk driving case in China....
His original sentence was made amid a two-month nationwide crackdown against drink-driving launched in August following a series of fatal accidents involving pedestrians and drunk drivers. Enforcement of laws against drunken driving has traditionally been lax and police easily bribed or otherwise persuaded to expunge convictions.
However, a recent spate of highly publicized drunken driving incidents has sparked outrage in the media and on the Internet. The problem has tapped into disgust over China's yawning gap between the rich and poor after a young man driving his father's Porsche SUV killed a 16-year-old waitress earlier this month.
Drivers in Beijing can be cited as drunk if they have a blood alcohol level at or above 0.02, or 20 milligrams of alcohol per 100 milliliters of blood. That is much lower than the U.S. limit of .08, making virtually any consumption of alcohol by drivers illegal.
September 7, 2009
When and how will SCOTUS respond to the California prison litigation?
As detailed in this San Jose Mercury News article, "California officials Friday asked the U.S. Supreme Court to block a lower court order that forces the state to quickly devise a plan to shed more than 40,000 inmates from its overcrowded prisons." This filing came on the heels of the decision late last week by the special three-judge panel, noted here and available here, which refused to stay its order that California submit a prison reduction plan by September 18. Here is more on California's SCOTUS filing:
In a 46-page petition to Supreme Court Justice Anthony Kennedy, who handles emergency appeals from the Western states, California Attorney General Jerry Brown asked for an immediate stay of a three-judge panel's Aug. 4 order requiring the state to submit its prisoner release plan within 45 days.
Judges on the federal court panel Thursday rejected the state's bid for a stay, saying they've been "more than patient with the state and its officials" in the years-long legal battle over conditions inside California's prison system.
But California officials say the court has put the state in an impossible spot by requiring it to come up with a plan to reduce the prison population by one-fourth by Sept. 18. "Every day that the three-judge court's order hangs over California, it places enormous strains on the state's existing resources and creates intolerable anxiety for both officials and residents of the nation's most populous state," state lawyers wrote to Kennedy.
Meanwhile, according to this distinct article in the Sacremento Bee, the separate political fight going on "in the California Legislature over prison cuts is costing taxpayers millions per day as lawmakers debate changing tough-on-crime policies that have sent prison populations and costs soaring." As this article explains, the state's "fiscal crunch grows by $3.3 million per day because the state budget anticipated that a deal on how to cut $1.2 billion from prisons would be struck in July, not mired in politics for months."
In other words, everyone says for a variety of reasons that time is of the essence in these matters. Thus, it would seem important for Justice Kennedy and/or the entire Supreme Court to move quickly to rule in some manner concerning this California prison litigation. And yet SCOTUS is not an institution known for moving very fast on others' timelines. Thus, I will be intrigued to see not only how, but when, SCOTUS responds to California's emergency filing.
UPDATE: Over at SCOTUSblog here, Lyle Denniston discusses this case and provides this link to California's stay application. The entire stay application makes for an interesting read, including the fact that Carter Phillips of Sidley Austin is listed as counsel of record for California. Apparently, California can afford to hire a top-flight Supreme Court litigator despite its economic woes (and I cannot help but wonder if Phillips is giving the struggling state a dsicount or taking his fees in the IOUs the state was recently forced to utilize).
A remarkable concurrence in the affirmance of a long mandatory minimum sentence
Late Friday the First Circuit affirmed the application of a 20-year mandatory minimum sentence in a single-page per curiam opinion in US v. Cirilo-Munoz, No. 08-1830 (1st Cir. Sept. 4, 2009) (available here). The opinion in Cirilo-Muno is blog-worthy because of a remarkable five-page concurrence by Judge Torruella, which starts and ends this way:
This case, and its outcome, is a notorious example of oppressive injustice culminating in an outrageous adjudication. It is a stain on the robes of American justice. Appellant Cirilo-Muñoz was convicted of aiding and abetting the murder of an on-duty police officer. He was convicted even though his co-defendant Lugo- Sánchez, the murderer himself, who initially tried to pin Cirilo-Muñoz for the murder and was the government's star witness, "testified unequivocally that Cirilo[-Muñoz] had no advance knowledge about his plan to murder . . . and did not assist him in committing the murder in any way." United States v. Mangual-Corchado, 139 F.3d 34, 50 (1st Cir. 1998) (McAuliffe, J., dissenting). We are now called upon to affirm the imposition of a harsh mandatory minimum sentence, which only compounds the injustice caused by Cirilo-Muñoz's conviction. Because I have taken an oath to uphold the law irrespective of my personal views, I am left without a principled choice in this appeal other than to concur, and, in the process, register my most vehement disagreement with the warped outcome of this case....
A series of coincidences have laid bare a system of law, which in Cirilo-Muñoz's particular circumstances has failed to protect him from the oppressive power of government and its bureaucracy. The result is that a seventeen-year-old adolescent has been condemned to spending his entire adult life incarcerated in a federal prison. To this wrongful outcome have contributed all three branches of government, with Congress making its contribution on this appeal through its draconian mandatory minimums.
Our prior decisions and the laws passed by Congress command this result, which I must obey. I write this opinion so that this injustice is not forgotten in our otherwise summary disposal of Cirilo-Muñoz's appeal. His case calls out for clemency and relief, and should serve to remind us both of the flaws in our system of adjudicating guilt and the dangers of mandatory minimums.
I am not familiar with this case or the reasons why Judge Torruella sees the case as "a notorious example of oppressive injustice culminating in an outrageous adjudication." But I am familiar with the reality that homicide defendants sentenced to something less than the death penalty often get overlooked by abolitionist activists eager to assail cases involving oppressive injustices. I wonder if those activists might take up the defendant's cause as urged by Judge Torruella in this opinion.
Confronting the gendered realities of extreme sex crimes
Most serious observers of the criminal justice system surely recognize how dramatically "gendered" much criminal offending tends to be — i.e., the vast majority of serious criminal offenders are men, and many female offenders get involved in crimes because of, or through, their relationship to men. Nevertheless, these gendered realities are not often broadly discussed or debated. But, as this new Sacremento Bee article highlights, the high-profile Garrido case is prompting new discussions of these matters. The piece is headlined "Women's role in sex crimes resurfaces as issue," and here is how it starts:
Charlene Williams of Sacramento lured six teenage girls and four young adults to their deaths as her husband demanded the perfect "sex slave."
Michelle Lyn Michaud, also of Sacramento, customized curling irons to help her boyfriend torture and murder a 22-year-old student abducted from a Pleasanton street.
In Utah, Wanda Eileen Barzee was accused of helping her husband kidnap 14-year old Elizabeth Smart at knifepoint from her Salt Lake City bedroom so that he could secure another "wife."
Now along comes Nancy Garrido of the Bay Area. Like the others, Garrido is accused of teaming up with a male partner — in Garrido's case, her husband of nearly three decades — and allegedly committing unthinkable crimes against other women and children.
Notable criminology studies from international sources
Catching up with some of the SSRN pieces in my in-box, I discovered these two notable criminology pieces from researchers working outside the USA:
Abstract: This paper tests whether factors referring to socio-economic aspects, family heritage, social interaction, habits and customs explain differences among violent and non-violent prisoners. Some of the results of the probit estimation show that economic issues are the main factors that stimulate the practice of non-violent crime. On the other hand, violent crimes results suggest that factors related to family heritage reduce this kind of crime. In relation to variables of social interaction, prisoners who were brought up in a good neighborhood have a lower probability of committing violent crimes.
Abstract: This paper examines the impact of prison conditions on future criminal behaviour. The analysis is based on a unique dataset on the post-release behaviour of 25,000 Italian former prison inmates. We use an exogenous variation in prison assignment as a means of identifying the effects of prison overcrowding, deaths in prison, and degree of isolation on the probability of re-offending. We find do not find compelling evidence of deterrent effects of prison severity. The measures of prison severity do not affect negatively the probability of recidivism. Instead, all point estimates suggest that harsh prison conditions increase post-release criminal activity, though they are not always precisely estimated.
Reflecting on community intuitions about justice and punishment
As spotlighted in this paper and in lots of other thoughtful work, Paul Robinson has pioneered and championed a concept he calls "empirical desert" that is focused on having community intuitions of justice as the backbone of a criminal justice system. As I have recently figured out, I think the label "empirical desert" is a less-than-ideal way to describe Robinson's very valuable insight that shared intuitions of justice ought to play a more central role in the design of punishment systems.
Valuably, lots of thoughtful folks are starting to assess and debate Robinson's concept of "empirical desert," as evidenced by this new paper on SSRN, titled "How to Improve Empirical Desert," by Adam Kolber. Here is the abstract:
According to advocates of "empirical desert," laypeople intuitively support a retributive approach to punishment, and policymakers can increase compliance with criminal justice policies by punishing in accord with lay intuitions.
I offer three criticisms of empirical desert intended ultimately to strengthen its theoretical underpinnings: First, advocates have cherry-picked certain moral intuitions, while ignoring others. They focus on the calm, unbiased intuitions of people who are generally law-abiding, even though the people whose compliance we most hope to gain — those who are on the fence about offending — are likely to act under biased, heat-of-the-moment circumstances. Second, advocates cannot operationalize empirical desert because they have yet to demonstrate the value of the compliance induced by empirical desert relative to the value of other consequentialist goals. Third, empirical desert arguably exploits laypeople by using their “mistaken” retributive beliefs about punishment to encourage their compliance with consequentialist goals. Such exploitation may especially trouble defenders of the “publicity principle,” which requires that a system of morality be based on principles that can be announced publicly without thereby undermining those same principles.
I do not describe precisely how empirical desert advocates should respond to these concerns, but they can make substantial headway by more carefully distinguishing the use of widely-shared moral intuitions to make predictions about people’s behavior from the use of those intuitions to justify particular policies.
September 6, 2009
Seeking deep throughts in reaction to "The Recession Behind Bars"
Today's New York Times includes this fascinating op-ed, headlined "The Recession Behind Bars," which is authored Kenneth Hartman, who is nearing the end of his third decade in prison following a 1980 conviction for murder that led to an LWOP sentence in California. Here are excerpts from this must-read piece:
The past 25 years were generally prosperous for California; the economy boomed and fortunes were made in the sunny San Fernando Valley. But during this time, the lives of prisoners became much drearier. We were forced into demeaning uniforms, with neon orange letters spelling out “prisoner,” and lost most of the positive programs like conjugal visits and college education that we had had since the ’70s. Money was flowing outside the prison walls, but new “get tough” policies against criminals were causing our population, and our costs, to soar.
It is a quirk of California politics that it is among the bluest of states but has some of the reddest of laws. No politician here ever lost an election for being too tough on crime or prisoners. Consequently, all through the ’80s and ’90s billions of dollars were poured into a historic prison-building boom. Private airplane pilots tell me it’s easy to navigate at night from San Diego to Los Angeles and on up the Central Valley to Sacramento by simply following the prisons’ glowing lights. Good times in the free world meant, in here, ever-longer sentences, meaner regulations and ever-decreasing interest in rehabilitation. “Costs be damned; lock ’em up and be done with it” became the unofficial motto of the Department of Corrections.
The last time I received a visit from my family, in early July, the air-conditioning in the visiting room had been broken for more than a month. This matters because my prison is in the high desert north of Los Angeles.... The next day I asked one of the administrators what could be done to get the air-conditioning fixed, and he told me an amazing story. The free-world contractor who services the prison’s air-conditioning systems had refused to come out to replace the part that was broken, because the state owed the company tens of thousands of dollars in back fees and could pay only in i.o.u.’s. There would be no cool air until the state’s budget negotiations were concluded.
Now that the economy is suffering, there is talk of reforming the prisons, of reviving the discredited concept of rehabilitation, of letting some prisoners out early. Some people have even mentioned doing away with the death penalty because of the exorbitant cost to the state of guaranteed appeals. For those of us who have endured a generation of policies intended explicitly to inflict pain, this has a surreal quality to it. After all, it was only a year ago that the state authorities were planning the next phase of prison expansion. Obviously, all the passionate arguments that have been made about the moral wrongs of mass incarceration, of disproportionately affected communities, of abysmal treatment and civil rights violations were just so much hot air. Only when society ran out of ready cash did prison reform become worthy of serious consideration. What this says about the free world is unclear to me, but it doesn’t feel like a good thing.
The talk in here contains an element of schadenfreude. When the TV shows legislators complaining about how deep in the hole the state budget is, laughter fills the day room. Our captor turns out to be simply inept....
From my cell I can also observe the inner roadway on which prison vehicles pass. A fleet of new, shining-white super-security transportation vans still drives by daily. Leviathan hasn’t quite adjusted to the Golden State’s diminished firmament.
This snippet and the rest of the op-ed is perhaps more about modern sociology than modern economics or criminology. But, whatever label readers might attach to the piece, I hope deep thoughts will follow in the comments as we reflect on work, the economy and American society this Labor Day weekend.
Interesting review of closing penitentiaries due to the prison economy
This weekend's Wall Street Journal includes this effective piece headlined "Lights Out at the Penitentiary: Strapped States are Shutting Prisons, But Moving 1,100 Inmates -- Beds and All -- Is a Trial." Here is how it gets started:
Jeffrey Woods, warden of the Hiawatha Correctional Facility here at the eastern end of Michigan's Upper Peninsula, was vacationing on Lake Huron when his cellphone rang on July 1. The message from his boss: Hiawatha, which had been slated to shut down in October as part of a sweeping downsizing of the state's prison system, would now have to close by Aug. 7. That meant he had just five weeks to ship out 1,100 inmates and 207 staff.
"I stopped sleeping" after that, says Mr. Woods, who kept a to-do list by his bed and wrote down new tasks when he was jolted awake in the middle of the night. The scramble to empty Hiawatha prison is part of a rapid shift in thinking about how many people should be locked up in the U.S., and for what crimes.
For three decades, state and local governments built and filled jails to make good on promises to get tough on crime. Now, the recession and collapsing budgets are forcing an about face.
Prisons are one of the biggest single line items in many state budgets, in part because nearly five times as many people are now behind bars as in the 1970s. From California to New York, officials are now closing penitentiaries and releasing inmates early. At least 26 states have cut corrections spending in fiscal year 2010, and at least 17 are closing prisons or reducing their inmate populations, according to the Vera Institute on Justice, a criminal-justice reform organization in New York.
The problem is especially acute in Michigan. Inmates here on average serve 127% of their court-ordered minimum sentences, well beyond the sentences of inmates in other states that offer parole, according to the Council of State Governments Justice Center. The state last year spent $2 billion on prisons, and one third of all state employees work for the department of corrections, which is among the highest percentage in the nation. With the collapse of the auto industry, the pressure to pare these costs is high.
Detailed examination of the death penalty in Louisiana
The Shreveport Times today has this effective article, headlined "Louisiana death penalty: an eye for an eye or ineffective?," which provides a detailed examination of the death penalty in Louisiana. The paper indicates that this piece is only "the first in a series of stories by The Times about Louisiana's death penalty" and that in future articles it "will explore reasons for an apparent slowdown of executions, the costs of seeking the death penalty and the increasing number of death row inmates who are exonerated of their crimes and those whose sentences are overturned." Here are excerpts from this first piece:
The last execution in Louisiana was in May 2002. Leslie Dale Martin was put to death by lethal injection for the 1991 rape and killing of a 19-year-old college student. No other execution is scheduled, said Pam Laborde, Louisiana Department of Corrections spokeswoman.
Of the 27 men put to death since Louisiana reinstated the death penalty in 1979, 18 were executed between 1983 and 1988. Seven more were put to death during the '90s and just two were executed since 2000.
That mirrors a national trend. There have been 1,171 executions nationwide since 1976. The annual number has steadily dropped from a peak of 98 in 1999 to 37 executions last year, the Death Penalty Information Center reports.
"Louisiana was one of the most active death penalty states in the first 10 years after the death penalty was reinstated," [Professor Burk] Foster said. "Then it began to slow down. When we switched from electrocution to lethal injection it slowed down even more."
The reasons for that trend are varied, but better, more qualified legal representation for death row defendants has contributed to a lull in executions and an increase in exonerations and sentences being reversed, Foster said.
Since 2007, 11 men, not including those exonerated, have been taken off death row for a variety of reasons, the DOC reports. Most have seen their death sentences reversed and were resentenced to life in prison....
As a result of those and other factors, prosecutors are seeking death sentences less frequently. Faced with higher costs, the need for a unanimous jury verdict and a lengthy, expensive appeals process, they instead are opting for life sentences with no parole. Today there are 4,280 life inmates in Louisiana's state prisons.
An estimated 111 death sentences were meted out in 2008 across the country — part of a continual decline since 1998. In Louisiana, nearly half of the inmates on death row were sent there by three parishes — East Baton Rouge, Caddo and Jefferson. Between 2000 and 2008, those same parishes also had the most death row commitments in the state. Orleans Parish, which has the highest per capita murder rate in the nation, had not sentenced anyone to death in at least 12 years until August.
"There are parts of Louisiana that are very pro-death, but more than half the parishes in this state have never returned a death penalty," said Richard Bourke, director of the Louisiana Capital Assistance Center in New Orleans. "The death penalty in this state is driven by a small number of individually, locally-elected officials."