October 10, 2009
Some death penalty headlines from around the world
Capital punishment cases and debates oftem make international news, but here are an especially dynamic set of stories making headlines around the world:
From Australia, "Melbourne rally protests death penalty"
From the Bahamas, "Hundreds expected to take part in 'pro-hanging march'"
From India, "Campaign against death penalty starts from Punjab"
- From the United States, "EU says Texas, nation should end executions"
Conviction in Astor family case raises classic questions about how age should impact sentencingThis new article from the New York Times, which is headlined "Weighing Prison When the Convict Is Over 80," documents how a high-profile state conviction in New York is raising hard questions concerning how a defendant's age should impact sentencing outcomes. Here is how the piece starts:
In a case involving an 87-year-old man convicted of racketeering, a federal judge in Manhattan rejected a plea for leniency last year, giving the man a five-year sentence. The judge in this case had a special perspective: He was 84 himself.
But in another case this spring, an 85-year-old man who admitted providing sensitive military information to Israel was spared prison by a judge, who cited the man’s advanced age and said sending him to prison would “serve no purpose.”
In the 12 days they spent deciding the fate of Brooke Astor’s son, Anthony D. Marshall, the jurors said they did not make much of his age. But now that Mr. Marshall, who is 85 and had quadruple bypass surgery last year, has been found guilty of a variety of charges, his age can be expected to have some bearing on his sentence — though it almost certainly will not serve as a get-out-of-jail-free card.
The big little SCOTUS capital case from Ohio to be argued this coming weekThe Legal Intelligencer has this new piece, headlined "Ohio Death Penalty Case Might Determine Abu-Jamal's Fate," which highlights that even seemingly little capital cases taken up by the Supreme Court could have big consequences in other high-profile capital cases. Here is how t he piece starts:
Lawyers for convicted cop-killer Mumia Abu-Jamal will be watching closely on Tuesday when the U.S. Supreme Court takes up an Ohio death penalty case because its outcome may very well decide whether Abu-Jamal's death sentence will be reinstated.
In April, Abu-Jamal lost his final appeal seeking a new trial for the December 1981 murder of Philadelphia Police Officer Daniel Faulkner when the justices refused to take up the issue of whether blacks were unfairly excluded from the jury. But, at the time, the justices took no action on a companion petition filed by the Philadelphia district attorney's office demanding reinstatement of Abu-Jamal's death sentence despite having discussed it weeks before.
Now it appears certain that the high court has decided to hold the Philadelphia prosecutors' petition in abeyance pending the outcome of Smith v. Spisak -- an Ohio case that raises strikingly similar issues to those in Abu-Jamal's case.
If the prosecutors in that case are successful and win reinstatement of the death sentence imposed on Frank G. Spisak, the justices may then see no need to take up Abu-Jamal's case. Instead, at that point, it's likely that the justices would simply issue a one-page order in Abu-Jamal's case that would summarily reverse the decision by the 3rd U.S. Circuit Court of Appeals and order the appellate court to reconsider whether Abu-Jamal's death sentence should be reinstated.
Why is Abu-Jamal's case so similar to Spisak's? Both were on death row for notorious murders, but both won rulings in federal court that granted them partial new trials limited to the penalty phase. In both cases, the federal courts' decisions to overturn the death sentences hinged on Mills v. Maryland -- a 1988 U.S. Supreme Court decision that governs how juries should deliberate during the penalty phase of a capital trial.
Should domestic violence offenders have to register like sex offenders?The question in this post is prompted by this interesting story out of New York. The piece is headlined, "NY Lawmaker Pushes For Domestic Violence Registry: Domestic Abuse Offenders Would Have To Sign Up Similar To What's Required Of Sex Offenders." Here are some details:
A Long Island woman is recounting the terror she and her daughter endured at the hands of her ex-husband. This as efforts are underway to create an online registry of domestic violence offenders, just like sex offenders. The Suffolk County woman and her daughter, who have asked to remain unidentified, are in hiding from her ex-husband, who police say was previously arrested for domestic violence and weapons possession.
"My ex-husband he would go into rage. He put a knife to my throat, he spit on me, he choked me, many times in front of my daughter; he would lock us in the closet, also the psychological abuse," she told CBS 2. "Currently my ex-husband is online, on every single dating site. Women are looking at his profile. He indicates he is a physician. He indicates how much money he makes."
As easily as one finds an online date, there could be a way to find out if that prospective mate has a violent history. Suffolk County Legislator DuWayne Gregory (D-Amityville) wants to create an online registry of the county's domestic violence offenders. "They'll be outed, and the community and the world will know this is the thing they do behind closed doors," said Gregory.
Gregory compares his Suffolk County legislation to the sex offender registry. It would include an offender's name, address, and photograph, creating a shame-factor for abusers. "It's going to save lives and keep people out of danger. That"s why we are pushing it 100 percent," he said.
CBS 2 spoke with several coalitions against domestic violence who called the bill "well-intentioned," but concerned it could backfire. "The primary concern is about the victim's confidentiality," said Ruth Reynolds of the Suffolk Co. Victims Information Bureau and Family Violence Center....
Still, the victim we spoke with, for one, urges lawmakers to adopt the measure. "This is why I speak out, because there should be a registry to indicate their offenses," she said.
The full Legislature will not act on the bill before November because the sponsor, Legislator Gregory, wants to add a provision that would leave it up to a judge to decide how long each domestic violence predator would be named on the registry.
Because I am generally a fan of criminal justice transparency and often fear that expressed concerns about privacy are overstated, I generally favor the notion of having all serious criminal offenders subject to basic registration requirements. (I am troubled, however, by criminal laws that threaten severe punishments for a failure to keep a registration updated forever.)
The key to sound registry requirements, in my view, is ensuring that these registries are accurate and can include information about the age of a conviction and true nature of the offense conduct. (This recent commentary at The Atlantic, titled "Too Much Information, Not Enough Common Sense," speaks to some of these concerns.) I wonder if any public policy or law reform groups are working on model criminal registry legislation. A well-considered basic model for all these types of law would like be a real contribution to sentencing law and policy.
October 9, 2009
Personal liability for Texas parole official for ex-convict denying ex con required hearingAmong lots of great new stuff at the always great Grits for Breakfast, Scott notes this remarkable new story from the Austin Statesman headlined "Jury says state officials violated parolees right to hearing." Here are the basics:
An Austin federal jury on Thursday found that two top state parole officials violated the constitutional rights of an ex-convict who was denied a required hearing for 576 days. Jurors also held Board of Pardon and Paroles Chairman Rissie Owens liable for $21,250 in damages and awarded Curtis Ray Graham attorney's fees that are expected to top $100,000.
The verdict came after an unusually contentious trial presided over by U.S. District Judge Sam Sparks, who in August had declared a mistrial in the case and who earlier this week fined an assistant attorney general for disregarding his warnings about making prejudicial comments in front of jurors.
Graham sued the parole board after he was classified as a sex offender even though he was never convicted of a sex crime. He was arrested on aggravated rape charges in the 1980s, and parole officials used that as a basis for classifying him as a sex offender five years after he had been released on parole. Graham alleged he was never allowed to review evidence against him before the parole board made its decision in December 2007, despite several federal court orders requiring such hearings.
It is rare for ex-convicts in Texas to win such legal challenges in state or federal courts. It is almost unheard of for parole officials to be held liable for official omissions. State parole director Stuart Jenkins, a second defendant in the high-profile case, was not held liable.
At a time when several similar lawsuits are pending against state parole officials, attorneys have argued that a win by Graham could force new hearings in perhaps thousands of parole cases in which offenders were classified as sex offenders without proper hearings. Such a finding can bring more stringent limitations on their freedom. "This should send a message to the parole board that their arrogance not to change their policy won't work any longer, that constitutional rights matter in how they do their business," said William Habern, a noted parole-law attorney from Riverside who represents Graham.
Perhaps needless to say, I am interested to hear what Supremacy Claus and some other frequent commentors think about this case.
Two notable (little?) Seventh Circuit sentencing opinionsThe Seventh Circuit today handed down two published sentencing opinions today, both of which seem to deal with relatively little issues but seem notable nonetheless. Here are the basics from the start of each opinion's first paragraph:
US v. Poetz, No. 09-2359 (7th Cir. Oct. 9, 2009) (available here):
Suzanne Poetz pleaded guilty to theft of government property in violation of 18 U.S.C. § 641. Her advisory sentencing guidelines range was 24 to 30 months, and the district court sentenced her to imprisonment of a year and a day. Poetz argues on appeal that her sentence is unreasonable because the judge did not adequately consider her medical problems or the impact of incarceration on her family, which in her view warranted a sentence of home confinement.
US v. Anderson, No. 09-1958 (7th Cir. Oct. 9, 2009) (available here):
Only one thing links the three cases that we have consolidated for argument and disposition here: the question whether the district court correctly understood our decision in United States v. Head, 552 F.3d 640 (2009), as precluding its authority to impose, as a condition of supervised release, placement in a halfway house. Ronald Maceri, Kevin Anderson, and Rick Harre each violated the conditions of his supervised release, and each asked that he be given a shorter term of re-imprisonment to be followed by placement in a halfway house as one condition of his new supervised release. Understanding Head to preclude that disposition, the district court instead imposed a new term of imprisonment with a recommendation to the Bureau of Prisons (“BOP”) that it place each man in a halfway house during the last six months of his sentence. All three now argue that this violated 18 U.S.C. § 3553(a), because it resulted in a term of imprisonment longer than necessary. We must decide whether Head requires this result.
For Friday fun, folks can try to guess the results. Or just click through to the opinion if the only games of great interest to you today, as is the case for me, are the pair of ALDS games taking place in a few hours.
Alabama able to carry out another uneventful lethal injection executionPerhaps Ohio officials need to take a trip to Texas or Alabama, because these states have not seemed to have had any trouble with their lethal injection protocols. As detailed in this local article, headlined "Inmate put to death for 1992 murder," another seemingly uneventful lethal injection execution was completed last night in Alabama:
Alabama death row inmate Max Payne was executed by lethal injection Thursday for the 1992 kidnapping, robbery and killing of Cullman store owner Braxton Brown.
Payne, 38, died at 6:25 p.m. as his two sisters and other relatives wept quietly in the witness viewing room. Payne made a hand sign that means "I love you" to his relatives before losing consciousness. Asked if he had any last words, Payne said, "I just want to tell my family I love them."
The heavyset, balding Payne, strapped to a gurney in the execution chamber, made his last statement after warden Grantt Culliver read the execution order issued by the Alabama Supreme Court.
Once the lethal injection began, Payne gestured to family members and spoke quietly with prison chaplain Chris Summers, who was standing a few feet away. At one point Summers grabbed Payne's hand and patted him on the knee. Payne closed his eyes, pinched his lips and seemed to take a deep breath. Then he was still....
Payne's lethal injection brings Alabama's 2009 execution total to six, the most in a single year in the state since the U.S. Supreme Court allowed capital punishment to resume in the 1970s. Until now, the most in a single year was four, in 2005, 2000 and 1989.
Texas, meanwhile, appears to have six more executions scheduled before even Thanksgiving, after having already executed 18 persons this year. Interestingly, though, the last two executions scheduled in Texas were stayed, so maybe these 2009 execution numbers will change. Nevertheless, so far there seems to be little reason to conclude or expect that the lethal injection problems plaguing Ohio are slowing down the machinery of death in other states that regularly execute their condemned.
Some new and old related posts on Ohio developments and other lethal injection issues:
- Details on the botched Ohio execution attempt, issue spotting, and seeking predictions
- Will (and when and how will) SCOTUS have to weigh in on Ohio's desire to try execution again?
- Federal hearing about constitutionality of Ohio's re-execution attempt pushed back months
- Split Sixth Circuit panel stays next scheduled Ohio execution
- NEWSFLASH: Ohio Governor puts all state executions on hold until at least Dec. 2009
- Ohio considering new (and novel) method of lethal injection
- Can doctors block all US lethal injections (and indirectly abolish the death penalty)?
"In U.S., Record-Low Support for Stricter Gun Laws"
The title of this post is the headline of this news release from the folks at Gallup. Here are some of the statistical highlights from the latest Gallup poll on these topics:
Gallup finds a new low of 44% of Americans saying the laws covering firearm sales should be made more strict. That is down 5 points in the last year and 34 points from the high of 78% recorded the first time the question was asked, in 1990.
Today, Americans are as likely to say the laws governing gun sales should be kept as they are now (43%) as to say they should be made more strict. Until this year, Gallup had always found a significantly higher percentage advocating stricter laws. At the same time, 12% of Americans believe the laws should be less strict, which is low in an absolute sense but ties the highest Gallup has measured for this response.
These results are based on Gallup's annual Crime Poll, conducted Oct.1-4 this year.
The poll also shows a new low in the percentage of Americans favoring a ban on handgun possession except by the police and other authorized persons, a question that dates back to 1959. Only 28% now favor such a ban. The high point in support for a handgun-possession ban was 60% in the initial measurement in 1959. Since then, less than a majority has been in favor, and support has been below 40% since December 1993.
The trends on the questions about gun-sale laws and a handgun-possession ban indicate that Americans' attitudes have moved toward being more pro-gun rights. But this is not due to a growth in personal gun ownership, which has held steady around 30% this decade, or to an increase in household gun ownership, which has been steady in the low 40% range since 2000.
In light of this data and the trends, it is interesting to speculate whether Heller just represents another example of major modern Supreme Court rulings simply following and reinforcing existing political trends. It is also interesting to speculate whether post-Heller rulings about gun rights and regulations may alter these long-standard trend lines in any significant way.
How might we punish "semi-voluntary acts"?The question of this post is prompted by this new paper from Professor Deborah Denno that I just saw on SSRN. The title of this paper is "Consciousness and Culpability in American Criminal Law," and here is the abstract:
American law requires a voluntary act or omission before assigning criminal liability. The law also presumes that an individual who is unconscious, such as a sleepwalker, is incapable of a voluntary act. For some criminal defendants in the United States this all-or-nothing approach to the voluntary act requirement can mean the difference between unqualified acquittal if they are found to have acted involuntarily, lengthy institutionalization if they are found to be insane, and incarceration or even the death penalty if their acts are found to be voluntary. In contrast to the law’s dual dichotomies of voluntary/involuntary and conscious/unconscious, modern neuroscientific research indicates that the boundaries between our conscious and unconscious states are permeable, dynamic, and interactive. To enable the law to join science in a more nuanced and just view of the human mind, this article proposes that, in addition to voluntary and involuntary acts, the criminal law recognize a third category — semi-voluntary acts.
I am inclined, even without having a chance to read the whole paper, to embrace this proposed third category of semi-voluntary acts as a way to describe some wrongful behavior for criminal law purposes. But that then just requires turning to the really hard question of how semi-voluntary acts ought to be punished. Should perhaps alternative sentences or technocorrections or other novel punishment be the presumptive response to this new category of consciousness and culpability?
October 8, 2009
"South Koreans outraged over sentencing in child rape cases"
The title of this post is the headline of this notable article in the Los Angeles Times reporting upon a notable sex offender sentencing debate going on in another part of the world. Here are the details:
A series of highly publicized child rape cases in which the defendants were widely seen as receiving lenient sentences has outraged South Koreans, who have called for tougher penalties for sex crimes, including the castration of repeat offenders....
Officials want to expand the sentencing limit for sex crimes, which is currently 15 years or less for most offenses. Lawmakers are exploring the legality of chemical castration and are reviewing ways to expand the offender database.
Sex crimes -- especially those against children -- are on the rise in South Korea, according to police statistics, leading many activists to question the government's commitment to punishing repeat offenders.
The number of sex abuse victims under age 6 alone has exceeded 150 a year for the last three years, according to data from the National Police Agency.
For the first seven months of this year, only 40% of the approximately 6,000 suspects investigated for child sex abuse were prosecuted. Of those convicted, less than 1% received life sentences. Nearly half got off with fines and 30% received suspended terms, according to government statistics....
Activists say the government needs to get tough on offenders. "It's sad that people take this issue seriously only when media coverage comes out," said Choi Da-eun, manager of Child Watch Korea in Seoul. "These crimes happen every day. The number of child sex crime cases is on the rise. Not only cases involving girls are rising, but those involving boys are increasing over the years."
Jang Se-yeon, a nurse at the Seoul Sunflower Children Center, which treats abused children, said many victims distrust a justice system in which so few reported child abuse cases end with charges being filed. "People aren't sure whether the offender will be punished or not," she said. "That just increases their anguish."
The latest version of "The Comparative Nature of Punishment"I blogged here last year about a new piece by Professor Adam Kolber titled "The Comparative Nature of Punishment." I believe a new version of the piece (with what seems to be a new abstract) is up now here at SSRN. The whole piece is worth checking out again, as this revised abstract suggests:
Our assessments of the severity of prison sentences rest on a fundamental mistake. We deem inmates as receiving equal punishments when they are incarcerated for the same period of time under the same conditions. While doing so puts the inmates into identical situations, it does not change their situations equally unless they started out in identical circumstances. It is the amount by which we change offenders’ circumstances that determines the severity of their sentences.
In tort and contract law, we understand what a defendant has done to a plaintiff by examining the change in the plaintiff’s condition caused by the defendant. To assess the amount of an injury, we compare an injured party’s condition relative to the condition the party would have been in under other circumstances. For some reason, however, when we consider the treatment of prisoners, we ignore their baseline conditions.
To accurately assess punishment severity, I argue, we must compare an offender’s condition in prison relative to his baseline condition. This is the approach we use to measure the severity of certain kinds of punishment, like monetary fines. Fines specify an amount by which to change an offenders’ wealth. We never use fines to set equally culpable offenders’ net worth to the same level. But we do use prison to set equally blameworthy offenders’ liberties to the same level, even though offenders are deprived of liberty to different degrees depending on their baseline levels of liberty.
When we recognize the comparative nature of punishment, we see that, by putting two offenders in prison for equal durations, the offender with the better baseline condition may be punished more severely than the offender with the worse baseline condition. This means punishing one offender more severely than the other, even when they are equally culpable. I suspect that most people care little about correcting such inequalities. The bottom line, I suspect, is that people care less about true punishment equality and proportionality than they realize.
Death penalty becoming key part of new US Senate race in MassachusettsThis new item from the Boston Globe, headlined "Brown comes out for the death penalty," reveals how the death penalty is becoming a new political issue in an unlikely setting:
State Senator Scott Brown, the most prominent Republican in the race for US Senate, is attempting to strongly differentiate himself from the Democratic candidates by declaring himself a supporter of the death penalty. Brown, a Wrentham Republican, has released a Web video saying that those who commit “crimes that are so horrific that they shock our conscience” deserve to be executed.
All four candidates running in the Democratic primary oppose the death penalty, although earlier this week US Representative Michael Capuano seized on Attorney General Martha Coakley’s past support for the death penalty in limited cases.
Coakley, until seven or eight years ago, supported capital punishment in two instances, including for those convicted of killing police officers. She said she shifted her position after becoming concerned about wrongful convictions, and now opposes it in all cases.
“My Democratic opponents Martha Coakley and Mike Capuano are having an ongoing debate over who’s more liberal,” Brown says in his Internet ad. “Each one is trying to be softer on crime than the other. Unlike both of them, I support the death penalty.” “Deadly acts of terrorism, murders involving torture and the killing of law enforcement officials are among the types of crimes that deserve the ultimate punishment,” he added.
Especially since the federal death penalty has largely been dormant in recent years (for reasons that remain unclear as I have noted in prior posts), it is unlikely that a new US Senator from Massachusetts is will impact federal capital punishment policy or practice in any notable way. But given that long ago I advocated for an exclusively federal system of capital punishment, I suppose I am now strangely hoping that Mr. Brown might be seriously committed to shaking-up the federal capital punishment status quo.
Some related (and mostly dated) posts on the federal death penalty:
- Feds decide to seek death in local(?) killing in state without the death penalty
- "Death penalty decisions loom for Barack Obama"
- More support for an exclusively federal death penalty
- A poster child for the (federal) death penalty?
- The federal law gap in the NJ death penalty report
Minnesota Supreme Court rejects constitutional arguments against LWOP sentence for 17-year-old murderer
A helpful reader forwarded to me today's Minnesota Supreme Court decision in State v. Martin, No. A07-1262 (Minn. Oct. 8, 2009) (available here). The official syllabus in the Martin case describes one of its holdings in this way: "The punishment of life in prison without the possibility of release for a juvenile who was 17 years of age when he committed the offense was not cruel or unusual punishment in violation of the United States or Minnesota Constitutions."
The body of the opinion details that the Minnesota Supreme Court in 1999 upheld a juve LWOP sentence against a constitutional challenge, and it also notes that the defendant in this case "was only six weeks from his eighteenth birthday when he shot" and killed a rival gang member. After reviewing the constitutional arguments made by the defendant, the Minnesota Supreme Court concludes that "Martin has failed to carry his heavy burden of demonstrating a compelling reason to overturn [our prior ruling]. Nor did Martin make any showing that this punishment was disproportionate as applied to him. We hold that the punishment ... is not unconstitutional as applied to Martin."
Is concern about child porn distorting normal criminal procedure rules?The question in the title of this post is prompted by a split decision from the Sixth Circuit this morning in US v. Frechette, No. 08-2191 (6th Cir. Oct. 8, 2009) (available here). Though not a sentence case, regular readers of this blog should appreciate why the ruling has drawn my attention and has prompted my inquiry.
First, the start of the majority opinion in Frechette, which happened to be authored by a district judge sitting by designation, suggests that this is a simple matter :
The issue in this case is whether it is probable that someone who pays approximately $80 for a subscription to a web site is likely to use that subscription. Because we hold that it is probable, we REVERSE the district court and REMAND this case.
But, as evidenced by the start and end of Judge Moore's dissent, there is perhaps a lot at stake and a lot being influenced by modern concerns about child porn downloading:
I wholly disagree with the radical view of probable cause expressed in the majority opinion — a view far more expansive than any circuit has taken to date — and, for that reason, I must vigorously dissent. The affidavit supporting the warrant in the instant case established a single fact particular to Frechette: Frechette bought a one-month membership to one website displaying child pornography. This is the sole basis upon which the majority rests its finding of probable cause, and the majority insists that this result is dictated by our case law and that of other circuits. Such an assertion, however, ignores the fact that the instant appeal is materially distinguishable from these prior cases....
I cannot think of any other circumstance where we have endorsed an invasion of a person’s privacy with so few facts from which to draw an inference that the intrusion would likely uncover evidence of a crime. What is the justification for such an unprecedented encroachment upon our constitutional protections? Consider a factually identical scenario in a different context: Would this court approve a search warrant for all the computers in a home based on an affidavit that contains only one particularized fact — that someone who lived at that address obtained a one-month membership to a website that allows its members to listen to music in violation of copyright law? If the answer to this question is “yes,” there are not enough officers in the nation to enforce the countless warrants that magistrates may now issue to search college dorm rooms and homes across America. If the answer is “no,” as it should be, and as I suspect it would be, one must ask why two cases with materially indistinguishable facts result in two very different outcomes. The answer is as obvious as it is unsettling. The majority’s conclusion is erringly shaped by the fact that child pornography cases are particularly appalling. As reprehensible as our society finds those who peddle, purchase, and view child pornography, we, as judges, must not let our personal feelings of scorn and disgust overwhelm our duty to ensure the protection of individual constitutional rights. We must remember, as the district court observed, that we “must not deny the protections of the Constitution to the least of us. There is no such thing as a fair weather Constitution — one which offers the harbor of its protections against unreasonable search and seizure only in palatable contexts and only to worthy defendants.” ROA at 46 (Sept. 17, 2008 Op. at 2).
"Cons seek freedom after 'Rocky' reform"The title of this post is the amusing headline of this New York Post article reporting on the opportunity for some state drug offenders to apply for sentencing relief after New York's recent reform of the harsh Rockefeller drug laws. Here are the details:
Hundreds of low-level drug offenders were allowed for the first time yesterday to apply for reduced sentences following reform of the harsh Rockefeller drug laws. "Under the Rockefeller drug laws, we did not treat the people who were addicted. We locked them up," Gov. Paterson said at Brooklyn Supreme Court. "Families were broken, money was wasted, and we continued to wrestle with a statewide drug problem."
The laws — written in the 1970s under then-Gov. Nelson Rockefeller and considered among the most robust in the nation — were watered down earlier this year in a deal hammered out by Paterson and Democratic lawmakers in Albany. The changes replaced mandatory prison terms with an emphasis on treatment.
In all, it was determined that about 1,100 inmates statewide were eligible to apply — although it is up to a judge to decide whether a reduction would be approved. "A good number will be excluded," said Denise O'Donnell, of the state's Division of Criminal Justice Services.... There were 59,053 inmates in New York prisons yesterday.
The criteria for approval include being a nonviolent class B offender sentenced to at least one to three years who has a clean prison record — including having completed drug-treatment programs and getting a GED, for example.... The sentencing judge will review the petitions, and prosecutors will have a chance to argue against any reductions.
Some recent related posts on reforming NY drug sentencing:
- New York commission calling for major drug sentencing reforms
- New York getting closer to dropping the rock
- Might prosecutors keep New York from finally "dropping the rock"?
- New NYCLU report on Rockefeller drug laws
- New York drug sentencing laws finally to get serious reform
- Will there be retroactive sentencing justice for drug defendants in New York?
Fifth Circuit panel rejects ex post facto challenge to SORNAAstute readers may recall that last week the Supreme Court granted cert in Carr v. United States to address whether the Ex Post Facto Clause precludes some prosecutions under the new federal Sex Offender Registration and Notification Act. Interestingly, this week a Fifth Circuit panel in US v. Young, No. 08-51047 (5th Cir. Oct. 7, 2009) (available here) provided its own assessment. Here is how the Young opinion starts:
Norman Lamar Young – a sex offender – appeals his conviction under 18 U.S.C. § 2250(a) for traveling in interstate commerce and then knowingly failing to update his registration information as required by the Sex Offender Registration and Notification Act (SORNA). Young contends that, as applied to him, SORNA violates his constitutional right to be free from ex post facto punishment. It does not, so we affirm.
If Norman Lamar Young seeks cert and the Supreme Court comes to a different view in Carr, I assume Young will get a helpful GVR. But I wonder if it would have been more sensible and efficient for the Young court to have just held on to this appeal until the Supreme Court decides Carr.
October 7, 2009
"Banned from churches, sex offenders go to court"The title of this post is the headline of this AP article, which spotlights the troublesome intersection of modern hyper-regulation of sex offenders and the need for sex offenders to try to get on with a law-abiding life:
Convicted sex offender James Nichols said he was trying to better himself by going to church. But the police who arrested him explained: The church is off-limits because it has a daycare center.
Now Nichols is challenging North Carolina's sex-offender laws in a case that pits the constitutional right to religious freedom against the state's goal of protecting the public from child molesters. "I just started asking the question, 'Why? Why am I being treated this way after trying to better myself?'" said Nichols, a 31-year-old who was twice convicted of indecent liberties with a teen girl and again in 2003 for attempted second-degree rape. "The law gives you no room to better yourself."
At issue in Nichols' case and a similar one in Georgia are day care centers and youth programs at houses of worship where sex offenders can come into proximity with children. Sex offender advocates agree some convicts should not be allowed around children, but they contend barring all offenders denies them support needed to become productive citizens. "Criminalizing the practice of religion for everyone on the registry will do more harm than good," said Sara Totonchi, policy director for the Southern Center for Human Rights. "With these laws, states are driving people on the registry from their faith community and depriving them of the rehabilitative influence of the church."
Thirty-six states establish zones where sex offenders cannot live or visit. Some states provide exemptions for churches but many do not. In December, North Carolina state legislators barred sex offenders from coming within 300 feet of any place intended primarily for the use, care or supervision of minors....
Jonathan Turley, a law professor at George Washington University, said preventing offenders from attending religious services is another in a series of increasingly unforgiving laws adopted across the country. Some of the laws have pushed offenders out of homes and entire communities. "This case is part of a much larger group of cases dealing with the expansive sex-offender laws," Turley said. "The state cannot sentence someone to a life of being an agnostic or an atheist without violating the constitution."
Some question whether the restrictive laws will lead to more crime. "It's not clear that there's any public-safety purpose to these laws. They continue to ostracize previous sex offenders in a way that could be dangerous in the end," said Sarah Tofte, a legal researcher with Human Rights Watch. "If they can successfully transition to the community, to include going to church, they are less likely to reoffend."
Some lawmakers say offenders such as Nichols should blame themselves for breaking the law in the first place. "I'm not denying him the right to go to church. He denied himself that," said state Sen. David Hoyle, the Democrat who sponsored the North Carolina bill. "If they are a convicted pedophile, they have given up a lot of their rights."
Church leaders feel caught between leading houses of worship where broken people can seek help and preventing criminals from exploiting a place of trust.... "I think everybody deserves a chance," said Shawn Cox, 28, a married father of two who says his faith helped steer him away from drug dealing and crime. "God turned my life around," said Cox. "I'm not saying that you bring the guy in and put him over the youth program or the youth ministry as soon as he walks in the door. But there's no way he can overcome these things without help and support."
This seems like a sentencing sentencing in which it might be especially appropriate to ask "What Would Jesus Do?".
Solitary confinement panel at Stanford Law School's public interest conferenceI just received this e-mail from a helpful 2L student at Stanford Law School about a notable panel taking place at a notable event later this month:
I'm currently a 2L at Stanford Law School, and I'm writing because I'm organizing a panel on the topic of solitary confinement, as part of Stanford's upcoming annual public interest conference, "Shaking the Foundations." ...
The conference takes place Oct 16 to 17, and the solitary confinement panel will be on Saturday afternoon at 3:15pm. Professor Joan Petersilia will be moderating, and panelists include J. Clark Kelso, the federal receiver in charge of medical care in California's prisons, Nick Trenticosta, who represents the "Angola 3" prisoners in their suit against the Louisiana Prison for holding them in solitary confinement for over 30 years, and Terry Kupers, a psychiatrist with extensive experience studying the psychological effects of prison conditions. We are also working to finalize a speaker who will talk about their personal experience in solitary confinement.
The panel description, and others, can be found on our website at this link.
"Does the Second Amendment Bind the States?"The title of this post is the headline of this effective column at FindLaw by Professor Michael Dorf. This piece is one of the most effective discussion of the complex and interesting precedents at issue in the Second Amendment incorporation case taken up by the Supreme Court last week. Here is a paragraph from the start of the commentary:
Last week, the Court announced that it would hear a case, McDonald v. Chicago, posing the question whether the Second Amendment applies to the states and their sub-divisions. In lawyer's jargon, McDonald requires the Court to say whether the Fourteenth Amendment "incorporates" the Second Amendment against the states. As I shall explain in this column, the case poses an intellectual challenge for the Justices who were in the Heller majority. To see why, we will need to begin by reviewing the story of how other constitutional rights came to be incorporated against the states.
Some related Second Amendment posts:
- What is the best argument that Heller should only impact the feds? Will it get any votes?
- What state and local issues will be litigated the most if (when?) Heller is incorporated?
- State AGs and the Second Amendment incorporation debate
- Assailing the unjustified Second Amendment limits in Heller
- What if no lower court judges participate in a "Second Amendment Revolution"?
- Has there been a single pro-gun-rights rulings in lower courts since Heller?
- What might 2009 have in store for . . . Second Amendment jurisprudence?
Keeping up with the corrections crisis news in California
At least on the surface, the prison crowding problem and the litigation it has generated has been relative calm the last few weeks. But as highlighted by these recent posts from the California Corrections Crisis, there is still plenty going on and worth discussing:
- Another Out-Of-State Jail Plan Collapses
- CDCR's Annual Report Published
- KPBS Program on Prison Crisis