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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:

October 10, 2009 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Conviction in Astor family case raises classic questions about how age should impact sentencing

This 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.

October 10, 2009 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack

The big little SCOTUS capital case from Ohio to be argued this coming week

The 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.

October 10, 2009 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (0) | TrackBack

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 10, 2009 in Collateral consequences, Criminal Sentences Alternatives, Offense Characteristics, Race, Class, and Gender | Permalink | Comments (37) | TrackBack

October 9, 2009

Personal liability for Texas parole official for ex-convict denying ex con required hearing

Among 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.

October 9, 2009 in Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack

Two notable (little?) Seventh Circuit sentencing opinions

The 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.

October 9, 2009 in Booker in the Circuits, Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack

Alabama able to carry out another uneventful lethal injection execution

Perhaps 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:

October 9, 2009 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (5) | TrackBack

"In U.S., Record-Low Support for Stricter Gun Laws"

Gun chartThe 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. 

October 9, 2009 in Second Amendment issues | Permalink | Comments (4) | TrackBack

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 9, 2009 in Offense Characteristics, Purposes of Punishment and Sentencing, Technocorrections | Permalink | Comments (15) | TrackBack

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."

October 8, 2009 in Sentencing around the world, Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

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.

October 8, 2009 in Purposes of Punishment and Sentencing | Permalink | Comments (4) | TrackBack

Death penalty becoming key part of new US Senate race in Massachusetts

This 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:

October 8, 2009 in Death Penalty Reforms | Permalink | Comments (2) | TrackBack

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."

October 8, 2009 in Graham and Sullivan Eighth Amendment cases, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

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).

UPDATEAdditional (and distinct) blog commentary on this case can be found at TalkLeft and The Volokh Conspiracy.

October 8, 2009 in Sex Offender Sentencing | Permalink | Comments (30) | TrackBack

"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:

October 8, 2009 in Drug Offense Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Fifth Circuit panel rejects ex post facto challenge to SORNA

Astute 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 8, 2009 in Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (4) | TrackBack

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?". 

October 7, 2009 in Sex Offender Sentencing | Permalink | Comments (27) | TrackBack

Solitary confinement panel at Stanford Law School's public interest conference

I 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.

October 7, 2009 in Scope of Imprisonment | Permalink | Comments (7) | TrackBack

"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:

October 7, 2009 in Second Amendment issues | Permalink | Comments (2) | TrackBack

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:

October 7, 2009 in Scope of Imprisonment | Permalink | Comments (2) | TrackBack

More details on Ohio's consideration of novel lethal injection protocols

This new article from the Columbus Dispatch, which is headlined "Ohio may overhaul execution policies," provides more details on Ohio's efforts to pioneer an improved lethal injection protocol:

Ohio prison officials are considering a major overhaul of death-penalty procedures that might include changing out such key elements as drugs and an execution team. Injecting deadly drugs into muscle and bone, using a single, more powerful drug, or using an entirely different combination of drugs are options being reviewed.

Prison officials are consulting with Dr. Mark Dershwitz, a University of Massachusetts professor of anesthesiology who testified for the state last year as a paid expert witness in a lethal-injection lawsuit in federal court. He has consulted with several states on lethal-injection litigation....

Ohio would become the first state to make major changes in a three-drug execution process that was essentially copied by 35 states from Oklahoma, where it was developed by an anesthesiologist in 1977....

The current execution team at the Southern Ohio Correctional Facility near Lucasville includes emergency medical technicians. However, they probably would not be qualified to perform some of the invasive methods being considered....

There is no time frame for developing the new protocol, Walburn said. The execution of Kenneth Biros, a convicted killer from Trumbull County, is scheduled for Dec. 8 but could be delayed by Strickland.

Richard Dieter, executive director of the Washington-based Death Penalty Information Center, said it is "significant that they're looking at a major overhaul of the process. This has been a long time coming." California and Maryland are looking at protocol and procedures changes, but Dieter said no other state is considering the major revamp contemplated by Ohio officials. "It's a fresh start," he said. "Maybe there are alternatives that have less risks."

Those who follow the modern debates and litigation over lethal injection protocols likely know that many opponents of the standard three-drug protocol claim that they are not seeking complete abolition, but just a better and less-risky lethal injection process.  Ohio's serious (and urgent) desire to develop and adopt an improved protocol should provide an opportunity for these opponents to show their true colors. 

If opponents of lethal injection were primarily complaining just about problems with the traditional three-drug protocol, these folks should be seriously and actively involved in helping Ohio develop and adopt an improved execution protocol.  But I will be seriously (and pleasantly) surprised if anyone who assailed the old lethal injection protocol will now provide help or advice to Ohio in developing and adopting a new and improved execution method.  Call me a cynic, but I have always believed that debates and litigation over lethal injection protocols have been just a form of shadow-boxing against the backdrop of a debate over the death penalty more broadly.

Some recent related posts on Ohio lethal injection issues:

Some older posts on the and the broader lethal injection protocol debate:

October 7, 2009 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (8) | TrackBack

Pennsylvania town struggling with a "rash of sexting incidents"

Local stories here and here and here report that, in the Pennsylvania town of Chambersburg, "Borough Police and school officials facing a rash of 'sexting' incidents called a news conference Tuesday to share information about how parents can protect their children’s welfare."  The last of these local pieces provides this effective review of the challenging criminal justice issues raised by this disturbing rash:

Bret Beynon, Franklin County assistant district attorney who specializes in juvenile prosecution, said the only charges that would be applicable could be felony possession of child pornography, which could come with the classification of sex offender if found guilty. She said if the students involved were juveniles, the sentences would not have a minimum or maximum sentence if charges were filed and the students were found guilty.

However, they would remain on their public record for life and they would have to submit DNA to the Pennsylvania State Police database. "It would affect them for the rest of their lives," Beynon said.

Anyone older than 18 who was charged with the felony would have to register with the state's Megan's Law Web site for 10 years under current laws. Megan's Law alerts the public to the living and working arrangements of registered sex offenders.

Since the possible charge would be possession of child pornography, everyone involved could face the same charge whether they took the photograph, received it, or forwarded it. Beynon said a student who received a picture, immediately deleted it and notified authorities would not face charges. However, someone who received a photo and either saved or forwarded it to others could. "Everybody could be on the hook for a felony," Beynon said.

Some related "sexting" posts:

October 7, 2009 in Sex Offender Sentencing | Permalink | Comments (16) | TrackBack

Long obstruction sentence for executive who lied about terminal illness

This local Boston Herald story, which is headlined "Big lie lands executive in prison: Former Biopure officer gets 3 years," suggests that a federal judge impose an above-guideline sentence on a white-collar scoundral who told what some might consider one of the worst kinds or tall tales.  Here are the details:

An ex-biotech executive’s sick ploy to avoid a federal lawsuit by lying about having terminal cancer was slapped with a longer-than-expected stretch in the slammer.

Howard P. Richman, 57, the former head of regulatory affairs at Biopure Corp. in Cambridge, was sentenced to three years in prison and ordered to pay a $50,000 fine for obstruction of justice, federal prosecutors announced yesterday.

U.S. District Court Chief Judge Mark Wolf’s sentence was harsher than federal guidelines and went beyond prosecutors’ recommendation for a 21-month prison term.  Ian Gold, Richman’s defense attorney, had requested a 15-month prison term....

Richman pleaded guilty in March to lying to Judge Patti Saris, who presided over a Securities and Exchange Commission suit accusing Biopure of misleading investors about its synthetic blood product Hemopure.

The Texas resident deceived his own lawyers by posing on the phone as a doctor, and produced a phony affidavit that claimed his chance of surviving colon cancer was, at best, 15 percent.  “To any human who has experienced serious illness in their own life or family, Richman’s conduct is appalling,” Assistant U.S. Attorney James Dowden wrote in a sentencing memorandum. “Quite simply, his lies are deserving of society’s condemnation and of serious criminal punishment.”

Based on the cancer claims, Saris halted the SEC’s case against Richman in July 2007.  The ruse apparently unraveled two months later when his attorneys abruptly withdrew from the civil case.

October 7, 2009 in Offense Characteristics, White-collar sentencing | Permalink | Comments (2) | TrackBack

"Prison Population and Crime"

The title of this post is the title of this new criminology paper that I justice noticed via SSRN.  Here is the abstract of a paper that seems like a must-read for any and everyone who wants to make assertions about the relationship between incarceration rates and crime:
This is a critical review of the literature concerning the impact of prison populations on crime. It summarizes 44 time series studies that use prison population in the crime equation, emphasizing problems of simultaneity and disaggregation bias. It briefly reviews studies that estimate the incapacation impact of prisons by using criminals' individual crime rates, emphasizing problems caused by skewness of the crime rates and their relationship with arrest rates. Almost all the numerous problems with prior research bias results towards finding that prisons have limited impacts, and once the problems are addressed the best estimate of the elasticity of prison populations on crime is about 1.0.

October 7, 2009 in Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (7) | TrackBack

October 6, 2009

Justice Scalia again seems to be the federal defendant's best friend in ACCA argument

Anyone who really follows the Supreme Court's criminal justice work should already know that the usual, knee-jerk labels and expectations concerning liberal/conservative voting patterns, though often holding true in capital cases and police practice cases, almost never hold true in the context of constitutional trial procedure and federal criminal statutory interpretation cases.  The latest data point on this front can be found in the full transcript of oral argument in Johnson v. US (08-6925), which is available at this link

Johnson is yet another Supreme Court case requiring the Justices to try to make sense of which prior state crimes suffice to trigger the 15-year mandatory minimum sentencing terms of the Armed Career Criminal Act (ACCA).  Though not an easy read, the Johnson transcript reveals Justice Scalia making a significant and sustained effort to provide a pro-defendant reading of the statute.  In notable contrast, Justice Breyer seems to be comfortable with a broader reading of the ACCA statute, though it is not entirely clear how he will vote in the case (especially since last term Justice Breyer thoughtfully suggested that the rule of lenity should apply with special force in cases involving mandatory minimum sentencing provisions).

There are other tea leaves worth reading for real ACCA junkies in the Johnson transcript, though it is hard to come away from the transcript without agreeing with Justice Alito's well-articulated view in an earlier ACCA case that Congress need to fix via a new statute the very messy and opaque jurisprudence that the Supreme Court's ACCA decision have now produced.

October 6, 2009 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics | Permalink | Comments (28) | TrackBack

"Parents in prayer death get probation, some jail"

The title of this post is the headline of this AP article reporting on a notable sentencing decision in Wisconsin state court.  Here are the basics:

A judge has sentenced a Wisconsin couple to 10 years probation and 30 days a year in jail for the next six years for praying instead of seeking medical care for their dying 11-year-old daughter.

Marathon County Circuit Judge Vincent Howard sentenced Dale and Leilani Neumann on Tuesday. The jail terms were stayed pending appeals by the couple of their convictions for second-degree reckless homicide in March 2008 death of their daughter, Madeline Neumann.

The girl died of complications from undiagnosed diabetes on the floor of the family's home while people around her prayed. Someone called 911 after she stopped breathing.

Okay, all you wanna-be sentencing judges: is this outcome similar to the sentence you might have given?

October 6, 2009 in Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

Justices troubled by constitutionality of "animal porn" federal criminal statute

This report from SCOTUSblog, titled "Analysis: Animal cruelty law in trouble," confirms my instinct that many Justices would have deep concerns about the federal criminal law that  prohibit what I like to call "animal porn."  Here is the start of Lyle Denniston's report on today's oral argument in US v. Stevens:

Congress’ attempt ten years ago to ban animal cruelty, by banning video and other depictions of it, had its first constitutional test in the Supreme Court Tuesday, and appeared to have failed.  Despite efforts by an Obama Administration lawyer to show that Congress wrote carefully and narrowly, most of the Justices strongly implied that the law probably goes too far — or at least was so vague that no one can know just what is illegal.  Only one Justice, Samuel A. Alito, Jr., seemed tempted to support the law as is.

The full transcript of oral argument in United States v. Stevens (08-769) is available here.

October 6, 2009 in Offense Characteristics | Permalink | Comments (6) | TrackBack

"A Smarter (and Cost-Efficient) Way to Fight Crime"

The title of this post is the headline of this recent piece in the New York Times by economist Robert Frank.  Here are snippets:

Law enforcement policy in the United States rests implicitly on the “rational actor” model of traditional economics, which holds that people take only those actions whose benefits exceed their costs.

This model says that crime will be deterred if the expected punishment is strong enough — a prediction that has not been borne out in practice. Although long sentences are now common and the incarceration rate is five times what it was during most of the 20th century, the crime rate is still two and a half times the average of 1950-62.

Mark Kleiman, a professor of public policy at the University of California, Los Angeles, says there is a better way. In a new book, “When Brute Force Fails,” he argues that instead of making punishments more severe, the authorities should increase the odds that lawbreakers will be apprehended and punished quickly....

The evidence suggests that when hardened criminals are reasonably sure that they will be caught and punished swiftly, even mild sanctions deter them. But not even the prospect of severe punishment is effective if offenders think they can get away with their crimes. One way to make apprehension and punishment more likely is to spend substantially more money on law enforcement. In a time of chronic budget shortfalls, however, that won’t happen.

But Mr. Kleiman suggests that smarter enforcement strategies can make existing budgets go further. The important step, he says, is to view enforcement as a dynamic game in which strategically chosen deterrence policies become self-reinforcing. If offense rates fall enough, a tipping point is reached. And once that happens, even modest enforcement resources can hold offenders in check....

It is an ingenious idea that borrows from game theory and the economics of signaling behavior....

Considerable evidence supports Mr. Kleiman’s emphasis on the efficacy of immediate sanctions. Experimenters have found, for example, that even long-term alcoholics become much less likely to drink when they are required to receive a mild electric shock before drinking. Many of these same people were not deterred by their drinking’s devastating, but delayed, consequences for their careers and marriages....

Potential applications of dynamic deterrence extend well beyond street crime. For example, it could help rein in corporate scofflaws who now feel free to violate environmental and safety regulations because they know that regulators are stretched thin. The strategy won’t work in all situations. But when the circumstances are right, it’s a revolutionary idea.

October 6, 2009 in Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (5) | TrackBack

Ohio considering new (and novel) method of lethal injection

This new AP article, which is headlined "State might try new lethal-injection sites," suggests that Ohio is seriously talking about a whole new approach to lethal injection in the wake of its failed execution attempt last month.  Here are some of the particulars:

Ohio is considering administering lethal drugs into inmates' bone marrow or muscles as an alternative to -- or a backup for -- the traditional intravenous execution procedure, a prisons department spokeswoman said today. "Everything is on the table" as the state researches ways to adjust its death chamber procedure in the wake of a failed execution last month, when officials couldn't locate suitable veins on inmate Romell Broom, said Ohio Department of Rehabilitation and Correction spokeswoman Julie Walburn....

The changes could include a different procedure to access veins, the use of a device to inject lethal chemicals directly into an inmate's bone marrow, or injection into muscles....

Richard Dieter, director of the nonprofit Death Penalty Information Center, said he isn't aware of any other states that have considered, or currently use, injections into bone marrow or muscle as part of their protocol....

Ohio officials also are exploring whether to keep the state's three-drug regimen -- a sedative, a paralyzing agent and a chemical to stop the heart -- or to rely on a single drug, Walburn said. It could be used as a backup if officials encounter difficulty locating veins, or as a new procedure to replace the old one.

It would, of course, be very significant if Ohio were to start to pioneer a whole new approach to lethal injection protocols.  And such a new approach would, in all likelihood, prompt a whole new round of constitutional litigation of the protocol's constitutionality.

Some recent related posts on Ohio lethal injection issues:

October 6, 2009 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (2) | TrackBack

Notable (new?) First Circuit opinion on Heller and federal juve crimes and punishment

I just discovered today this notable opinion from the First Circuit concerning the Second Amendment and federal juvenile prosecution and punishment. Strangely, the opinion in US v. Rene E., Juvenile Male, is dated August 31, 2009, but perhaps there was some reason the ruling was not made public earlier. Whatever the backstory, anyone interested in the Second Amendment or federal prosecution of juveniles will want to check out the First Circuit's work in Rene E.  Here is how the opinion starts:

Juvenile Rene E. ("appellant") was charged with possessing a handgun in violation of 18 U.S.C. § 922(x)(2)(A) and 18 U.S.C. § 5032, the charging provision of the Juvenile Delinquency Act. After his motions to dismiss and motion to suppress were denied, he entered a conditional guilty plea. On appeal, he raises constitutional challenges to 18 U.S.C. § 922(x)(2), arguing both that it violates his rights under the Second Amendment, as interpreted by the Supreme Court in District of Columbia v. Heller, 128 S. Ct. 2783 (2008), and that it exceeds Congress's authority under the Commerce Clause. He also challenges the sentence he received under the Juvenile Delinquency Act, arguing that the district court erred in determining the maximum sentence to which a similarly situated adult would be subject under the United States Sentencing Guidelines.

We hold that 18 U.S.C. § 922(x)(2)(A) does not violate the Second Amendment, and we reaffirm our holding in United States v. Cardoza, 129 F.3d 6 (1st Cir. 1997), that section 922(x)(2)(A) does not exceed Congress's Commerce Clause authority.  Lastly, because appellant is no longer in detention or under juvenile supervision, we conclude that his sentencing challenge is moot.  Therefore, we affirm.

UPDATE:  Over at Crime & Consequences, Kent here has a notable (and amusing) reaction to the ruling in Rene E.:

Personally, I'd like to see the Commerce Clause challenge go up to the Supreme Court. The peoples of Arkansas and Massachusetts should be able to come to different conclusions regarding whether 17-year-olds can possess handguns.

Perhaps we should also have a limit on the length of statutes so that none will ever need a subdivision (x).

October 6, 2009 in Offender Characteristics, Second Amendment issues | Permalink | Comments (1) | TrackBack

Coverage of the mini-moratorium now in place in Ohio

Unsurprisingly, both old and new media are talking about Governor's Ted Strickland's decision to put a halt to executions in Ohio for the next few months.  Here is some of the coverage:

October 6, 2009 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (0) | TrackBack

October 5, 2009

A Tuesday trio of criminal law cases for SCOTUS

As detailed in this SCOTUSblog post, the Supreme Court on Tuesday, October 6 will these hear three criminal justices cases:

The Stevens case, which concerns what I like to call "animal porn," will surely get the most media attention, but the Johnson case seems likely to have the most consequential impact on federal criminal law and punishment.

October 5, 2009 in Who Sentences? | Permalink | Comments (3) | TrackBack

"Appeals court in NYC upholds Rigas' sentencing"

The title of this post is the headline of this AP article, reporting on this sentencing ruling in a high-profile white-collar sentencing appeal handed down late today by the Second Circuit.  Here are the basics:

A federal appeals court in New York has upheld prison sentences given to a father and son who built Adelphia Communications into a cable television powerhouse.

The 2nd U.S. Circuit Court of Appeals in Manhattan on Monday agreed that prison terms given to 84-year-old Adelphia founder John Rigas and his son Timothy were appropriate. Defense lawyers had argued that the father's 12-year sentence and the son's 17-year prison term were more years in prison than some terrorists serve.

Because I filed an amicus brief arguing that the district court's sentencing work was procedurally unreasonable, I am disinclined to comment on the particulars of this panel ruling.  But readers, of course, should feel free to discuss the ruling (which address a number of notable white-collar sentencing issues).

October 5, 2009 in Sentences Reconsidered, White-collar sentencing | Permalink | Comments (2) | TrackBack

NEWSFLASH: Ohio Governor puts all state executions on hold until at least Dec. 2009

Responding to both the recent failed execution efforts in the Broom case and the stay entered by a federal court today in the Reynolds case, Ohio's Governor has put a halt to all executions in the state until at least 2010. These breaking details are reported in this local press report, which starts this way:

Gov. Ted Strickland issued reprieves Monday for two death row inmates scheduled for execution in coming weeks. Te move came after a federal court issued a stay in the case of Lawrence Reynolds, citing ongoing legal arguments following the failed execution of Romell Broom last month.

Under Strickland's reprieves, Reynolds would face a March 9 execution, while Darryl Durr's execution would be set for April 20. Reynolds was to face the death penalty on Thursday for murdering a Cuyahoga Falls woman in 1994. Durr, convicted in a Cuyahoga County rape and murder of a teen-ager in 1988, was scheduled for lethal injection in November.

"Since Sept. 15, the Department of Rehabilitation and Corrections has been working to establish a back-up or alternative lethal injection protocol in the unlikely event similar circumstances arise when implementing the death penalty in the future," Strickland said in a released statement. "While the department has made progress, additional time is needed to fully conduct a thorough and comprehensive review of an alternative or back-up lethal injection protocol that is in accordance with Ohio law.  Therefore, I have decided to issue two reprieves ... I have asked Director Collins to continue working to ensure the death penalty is administered fairly and effectively here in Ohio."

Strickland also left open the possibility of issuing additional reprieves, though the two issued Monday did not cover Kenneth Biros, scheduled for execution in December for a brutal 1991 murder in Trumbull County. "While I believe that the department will be able to complete its research and evaluation, select an appropriate back-up or alternative lethal injection procedure, and conduct any training or other preparation necessitated by that selection by the time of Mr. Biros; scheduled execution in December, I will issue any additional reprieves I deem necessary to the appropriate administration of executions under Ohio law," Strickland wrote.

The full statement by Governor Strickland can be found at this link.

Some recent related posts on Ohio lethal injection issues:

UPDATE:  I've tweked this post title to reflect the fact that Gov Strickland's statement leave open the possibility that Ohio will be able to get its execution protocol straightened out by Dec. 2009.  Realistically, though, especially given that the federal court hearing on the failed execution attempt is not scheduled until Nov. 30, I will be quite surprised if Ohio executes anyone before winter turns to spring in 2010.

October 5, 2009 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (8) | TrackBack

Some interesting snippets from the latest crime speech by Attorney General Holder

At the new Department of Justice website (which, personally, I do not find very aesthetically pleasing), one can now find the text of this new speech by Attorney General Eric Holder on crime issues.  This speech was today delivered to the International Association of Chiefs of Police Conference in Denver, and I found these passages especially notable:

But as important as it is to foster a stronger national dialogue between federal, state, and local law enforcement, talk alone is not enough.  Talk alone isn’t going to keep crime rates down.  Talk alone isn’t going to protect innocent victims.  Talk alone isn’t going to stop rival gangs from shooting up our streets, or drug dealers from peddling dope in our schools, or terrorists from attacking our cities.  Indeed, we all know that the best ideas in the world are worth little without the resources to implement them....

I want the Justice Department to be a partner with you as we develop the most up-to-date thinking about law enforcement strategies.  Therefore, I have directed our Office of Justice Programs to transform itself into an evidence-based agency that supports strong research, that shares scientifically-reliable findings that will ultimately help you do your jobs better and then provides the funds necessary to make sound theory into viable reality.  I am confident that this new direction will ultimately help you take advantage of new approaches that will greatly assist you in your efforts to further the cause of justice.

October 5, 2009 in Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (1) | TrackBack

If you build good guidelines, judges will follow

The title of this post seems to be the message of this local article discussing data on how frequently state judges in Pennsylvania sentence within applicable state sentencing guidelines.  Here are some of the details from an interesting (and all-too-rare) press discussion of state sentencing patterns:

There were 101,576 criminal sentences handed down in Pennsylvania courtrooms in 2008, and 1,530 of them were imposed by judges in the four Valley courts, according to the Pennsylvania Commission on Sentencing’s annual report.

Statewide, about 90 percent of the sentences meted out to convicted offenders conformed with the guidelines and 5 percent were shorter than suggested by the guidelines. In the Valley, the rate ranged from 92 percent conformity in Northumberland County to 98 percent in Montour County.

Judge William H. Wiest, one of three judges in Northumberland County, said he follows the state’s recommendations almost all the time because “they are well thought out, fair and reasonable.” Wiest said he’d like to see the guidelines broadened to allow judges the option of meting out harsher sentences.

After 11 years on the bench, he’d like to see the state increase its recommended sentencing for first-time drug sale offenders from a maximum of three months in jail to a maximum of seven months and allow more leeway in sentencing convicted drunken drivers. “I’d like a greater range of discretion,” he said....

Martin Wilson, assistant district attorney in Union County, said the creation of statewide sentencing guidelines helped level the playing field and ensured offenders in Philadelphia would face the same penalties as an offender who commits the same crime in the rural city of Sunbury. “They definitely served a valuable service in an effort to be consistent,” he said.

October 5, 2009 in Data on sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack

Noting some notable capital case cert denials

Both SCOTUSblog here and Crime & Consequences here have early post discussing some of the notable cases in which the Justices said "thanks, but no thanks" to requests for cert review.  One such case in which cert was denied, as noted by SCOTUSblog, was a "test of the constitutionality of the death penalty procedures in the state of Louisiana (Holmes v. Louisiana, 08-1358)."  And, as lamented by Kent here at C&C, some (but perhaps not all) Ninth Circuit capital rulings also evaded review:

"They can't reverse them all," the unofficial motto of the Ninth Circuit, is confirmed once again, as the Supreme Court denied certiorari of the Ninth's patently wrong reversal of yet another death sentence in Ryan v. Styers.  CJLF's amicus brief in that case is here.  Twenty years ago this December, James Styers told 5-year-old Christopher Milke, his girlfriend's son, that he would take him to a shopping mall to see Santa Claus.  Instead, he took little Christopher out into the Arizona desert and put three bullets in the back of his head.

On the brighter side, the Ninth's equally erroneous decision in the Belmontes case, a case in which its judgments have already been vacated twice by the Supreme Court (cites here), is not out of the woods yet.  Belmontes was on the conference list but is not on the orders list. That means (1) the state's petition will be considered again at another conference; or (2) the Court is preparing a summary reversal opinion.

Some related posts:

October 5, 2009 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Split Sixth Circuit panel stays next scheduled Ohio execution

As I predicted in this recent post after the Ohio Supreme Court refused a stay, this morning the Sixth Circuit has granted a stay of the scheduled October 8 execution date for Ohio death row inmate Lawrence Reynolds.  Not surprisingly, the opinions supporting the stay stress the failed execution attempt in Ohio last month.

The composition of the majority (Judges Cole and Martin) granting the stay in Reynolds v. Strickland, No. 08-4144 (6th Cir. Oct. 5, 2009) (available here), as well as the extended dissent by Judge Sutton, leads me to think that en banc consideration of this matter is a real possibility.  But whether there will be a en banc change of position or subsequent Supreme Court consideration is hard to predict.  Stay tuned.

Some recent related posts on Ohio lethal injection issues:

UPDATE:  The local AP now has this report on the ruling.  In future coverage, I will be interested to see and here how Ohio's Attorney General and other political players react to a ruling that could be, in effect, the imposition of a de facto moratorium on executions in Ohio in the forseeable future.

October 5, 2009 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (3) | TrackBack

"The Prisoners’ (Plea Bargain) Dilemma"

The title of this post is the title of this important article in Summer 2009 issue of The Journal of Legal Analysis. Here is the abstract, where I have placed in bold the important conceptual contribution of this piece by Professors Oren Bar-Gill and Omri Ben-Shahar:

How can a prosecutor, who has only limited resources, credibly threaten so many defendants with costly and risky trials and extract plea bargains involving harsh sentences?  Had defendants refused to settle, many of them would not have been charged or would have escaped with lenient sanctions. But such collective stonewalling requires coordination among defendants, which is difficult if not impossible to attain.  Moreover, the prosecutor, by strategically timing and targeting her plea offers, can create conflicts of interest among defendants, frustrating any attempt at coordination.  The substantial bargaining power of the resource-constrained prosecutor is therefore the product of the collective action problem that plagues defendants.  This conclusion suggests that, despite the common view to the contrary, the institution of plea bargains may not improve the well-being of defendants.  Absent the plea bargain option, many defendants would not have been charged in the first place.  Thus, we can no longer count on the fact that plea bargains are entered voluntarily to argue that they are desirable for all parties involved.

October 5, 2009 in Procedure and Proof at Sentencing, Recommended reading | Permalink | Comments (25) | TrackBack

SCOTUS opening day discussion of juve LWOP cases

Though they are not scheduled to be argued until next month, the official start of the new Supreme Court Term today prompts some additional major media attention and commentary about Graham and Sullivan, the two juve LWOP cases on the docket.  The Wall Street Journal has this new piece, headlined "Life in Prison for Minors -- Cruel and Unusual?", which rightly notes that Justice Kennedy is likely again to be a key vote in this cases:

Since the 1970s, the court has been narrowing the scope of the death penalty to those people considered most reprehensible.  When it comes to prison terms, however, the court rarely has intervened.  Justice Anthony Kennedy often has cast the deciding vote, siding with liberal justices to limit the death penalty, but joining conservatives to uphold severe prison terms.

The court ordered separate arguments in the Sullivan and Graham cases, suggesting it could be inclined to distinguish the two based on their ages.  "The difference between 13 and 16 matters," says Frank Colucci, a professor at Purdue University Calumet in Hammond, Ind., and author of "Justice Kennedy's Jurisprudence," published in September.  Prof. Colucci predicted Justice Kennedy will write an opinion in this case that will stress "the capacity of juveniles to be morally responsible for their crimes."

The Los Angeles Times has this commentaryby lawprof Bernard Harcourt, which is headlined "Sending children to prison for life: Our laws make allowances for juveniles' immaturity; judges should too." Here is a snippet:

The tough-on-crime rhetoric of "lock 'em up and throw away the key" is entirely inappropriate in the case of children. Children's brains, bodies and personalities are still in the process of growing and changing.  And many experts in neuroscience and psychology believe that the same changeability that makes young people vulnerable to negative influences and peer pressure also makes them good candidates for reform and rehabilitation.

In all other areas, we recognize their vulnerabilities.  Because of the relative immaturity and irresponsibility of minors, every state in the nation restricts them from voting, serving on juries, purchasing alcohol or marrying without parental consent.  States further restrict young adolescents from activities that require more mature judgment, such as driving and consenting to sexual activity. In fact, the state of Florida, where Sullivan and Graham are incarcerated for life, does not even permit adolescents to get their ears pierced without parental consent.

Some recent posts on juve LWOP and the Graham and Sullivan cases:

October 5, 2009 in Graham and Sullivan Eighth Amendment cases, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

October 4, 2009

The 10 biggest cases to watch for sentencing fans in the new SCOTUS term

In honor of the upcoming First Monday of October, I have quickly reviewed the SCOTUSwiki case index for October Term 2009 and provide below my sense of the 10 biggest cases to watch for sentencing fans (with links and discriptions from SCOTUSwiki):

  1. Graham v. Florida (08-7412)— constitutionality of life prison sentence for juvenile convicted of a non-homicide crime (to be argued Nov. 9)

  2. Sullivan v. Florida (08-7621) — same basic issue as in Graham v. Florida; the Court, however, has not consolidated the cases for hearing or decision (to be argued Nov. 9)

  3. Carr v. United States (08-1301) — Ex Post Facto Clause application to sex offender registration law (to be argued in early 2010)

  4. United States v. O’Brien and Burgess (08-1569) —  trial findings on a weapon that triggers a higher criminal sentence (to be argued in early 2010)

  5. Padilla v. Commonwealth of Kentucky (08-651) — effect of defense lawyer’s wrong advice on consequences of a guilty plea (to be argued Oct. 13)

  6. McDonald, et al. v. City of Chicago (08-1521) — incorporation of Second Amendment against the states (to be argued in early 2010)

  7. Johnson v. U.S. (08-6925) — battery as a “violent felony” for sentence enhancement (to be argued Oct. 6)

  8. United States v. Comstock (08-1224) — the constitutionality of continued imprisonment of a sex offender, after that individual has completed serving a prison sentence for the crimes (to be argued in early 2010)

  9. Alvarez v. Smith (08-351) — right to court hearing to challenge forfeiture for a drug crime (to be argued Oct. 14)

  10. Smith v. Spisak (08-724) — unanimity of jury as an issue in finding mitigating evidence in a capital case (to be argued Oct. 13)

Significantly, this top 10 does not include a host of very big criminal law cases, many of which could have profound sentencing echoes, on topics ranging from habeas review standards (two cases) to the constitutionality and application of certain federal crimes (four cases).  There are also big cases on the SCOTUS calender involving possible prosecutorial liability, jury selection and police practices.  Exciting times.

October 4, 2009 in Who Sentences? | Permalink | Comments (10) | TrackBack