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October 16, 2009

Off to Temple to participate in great program on prosecutorial discretion

A delayed flight has provided me with a chance to note that I am off to Philadelphia this afternoon in order to participate tomorrow in the Temple Political and Civil Rights Law Review's symposium, which is titled "Examining Modern Approaches to Prosecutorial Discretion."

I have the distinct honor of being one the keynote speaker's at this event, and I am very much looking forward to hearing all the terrific presenters who will be on four panels. More information about the event and all the top-flight participants is available at this website, which provides this basic description of some of the topics to be covered:

Symposium panels will focus on issues of prosecutorial discretion in juvenile cases, prosecutorial discretion in death eligible cases, sentencing guidelines and plea bargaining, and the necessity of ethical inquiries, including a comparison of prosecutor's ethical duties to the general public and crime victims with the ethical duties owed defendants.

October 16, 2009 | Permalink | Comments (27) | TrackBack

Friday forum: What kind of sentence would you give to Roman Polanski?

The question in the title of this post is inspired by this new FindLaw commentary, which is headlined "What Kind Of Sentence Is Roman Polanski Facing?".  Here is how the commentary starts and ends:

Film director Roman Polanski's fate has been much debated recently. Polanski, as readers are likely aware, was arrested in Switzerland and now faces extradition to California, where he pled guilty to having had sex with an underage woman in 1977, but fled before being sentenced. The most exceptional current reporting on this case has been in The Daily Beast, by former Los Angeles County prosecutor Marcia Clark. She revealed that her former colleague's claim that he had improperly contacted Polanski's sentencing judge was false, thus killing Polanski's alibi for fleeing. And more recently, she has reported on the truly voluntary nature of the Polanski plea.

Facts, however, have had little impact on Polanski's supporters -- who include Ann Appelbaum at the Washington Post (whose husband is a Polish official lobbying for Polanski's release, a fact she failed to mention), Joan Shore at the Huffington Post (who is a friend of Polanski), and many in the Hollywood community. Others, like Kate Harding (who has no ties to Polanski) at Salon, believe that this captured fugitive should face the music for his admitted criminal behavior. I feel confident that Harding's view represents that of the overwhelming majority of those who have thought carefully about this subject.

A front-page story entitled "In Polanski Case, '70s Culture Collides with Today," which ran in the October 10, 2009 New York Times raised, but did not answer an interesting question: Assuming Polanski is finally sentenced, what sexual standard would the judge apply – the standard applicable at the time of the crime or today's tougher standard?...

Based on Professor [Lynn] Branham's analysis, not to mention his fugitive status, sentencing will no doubt be much worse for Polanski now than it would have been in 1977-1978, a fact that he and his attorneys surely appreciate. No doubt Polanski is looking for some way, any way, to get back to France, which refuses to extradite its citizens. Last time, Polanski escaped by simply jumping on a plane. This time, it will require all of the creative directing talents he can muster, given the script of this story.

This commentary does a solid job describing the basic issues likely to impact Polanski's eventual sentencing fate, but on a Friday afternoon I thought it might be fun for folks to use the comments to suggest the kind of sentence they would like to see given to Roman Polanski. Obviously, there are no right or wrong answers here, and my students know I always give extra points for creativity.

October 16, 2009 in Celebrity sentencings, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack

"Does the Eighth Amendment Punishments Clause Prohibit Only Punishments That Are Both Cruel and Unusual?"

The title of this post is the title of this revised article draft via SSRN from Professor Meghan J. Ryan.  Here is the abstract:

There is a great struggle in the United States between proponents of the death penalty and death penalty abolitionists who believe that the practice is cruel and even unconstitutional.  Although the punishment of death is enshrined in the Fifth and Fourteenth Amendments of the Constitution, the Supreme Court seems to have followed its moral compass in chipping away at the death penalty because of the cruelty of the practice.  The Court's struggle between the text of the Constitution and its moral inclinations in the death penalty context has resulted in an inconsistent and confusing Eighth Amendment Punishments Clause jurisprudence.  While attempting to maintain neutrality on the topic and thus relying almost exclusively on assessing the unusualness of a practice through a purportedly objective assessment of state legislative action, the Court seems to have covertly injected into the equation its subjective views as to what punishments are unconstitutionally cruel. This tension between an objective measure of unusualness and a subjective assessment of cruelty has led the Court to make inconsistent statements about whether the Punishments Clause prohibits only punishments that are both cruel and unusual, or rather prohibits both cruel punishments and unusual punishments.

This Article goes where no other has, identifying and exploring this important question.  After tracing the history of the Eighth Amendment, analyzing the Court's early interpretations of the prohibition on "cruel and unusual punishments," and parsing the text of the Punishments Clause, the Article concludes that the Clause prohibits only punishments that are both cruel and unusual and that each of these components of the Clause should thus be independently assessed.  While this interpretation may narrow the scope of the Amendment, it allows for further innovations in humane methods of punishment and revives the federalist foundation of this nation that the Court's current jurisprudence has stifled.

October 16, 2009 in Sentences Reconsidered | Permalink | Comments (1) | TrackBack

The growing (and justified) complaints about Obama's approach to judicial nominations

Judges This new Washington Post article, which is headlined "Obama Criticized as Too Cautious, Slow on Judicial Posts," documents the growing complaints about the President's approach to judicial nominations. Here are excerpts:

President Obama has not made significant progress in his plan to infuse federal courts with a new cadre of judges, and liberal activists are beginning to blame his administration for moving too tentatively on what they consider a key priority.

During his first nine months in office, Obama has won confirmation in the Democratic-controlled Senate for just three of his 23 nominations for federal judgeships, largely because Republicans have used anonymous holds and filibuster threats to slow the proceedings to a crawl.

But some Democrats attribute that GOP success partly to the administration's reluctance to fight, arguing that Obama's emphasis on easing partisan rancor over judgeships has backfired and only emboldened Senate Republicans. Some Republicans contend that the White House has hurt itself by its slow pace in sending over nominations for Senate consideration. President George W. Bush sent 95 names to the Senate in the same period that Obama has forwarded 23....

The delays are having a ripple effect in federal courts, where caseloads continue to back up, said Senate Judiciary Chairman Patrick J. Leahy (D-Vt.). Currently, about 90 judicial seats -- about 10 percent of the total -- remain vacant in appeals and district courts.

The White House predicts that nominations and confirmations will pick up soon. "The administration has been working closely with members of Congress to identify a set of uniquely qualified judicial nominees with diverse professional experiences," said Ben LaBolt, an Obama spokesman. "This process has been bipartisan and we have made every effort to make confirmation wars a thing of the past."

But liberal activists argue that Obama needs to quicken the pace, partly for political reasons. "It is incumbent on the Democrats and the White House to push as hard as they can to confirm judicial nominees, given that next year Republicans will make an all-out effort to block candidates as a means to gin up their base before the election," said Nan Aron, president of the Alliance for Justice, an advocacy organization.

Analysts say that unlike Bush, who saw judicial appointments as a way to advance a strict view of the Constitution, Obama has not sharply defined his judicial philosophy. Eric Posner, a professor at the University of Chicago Law School, said that Republicans consider the federal courts crucial to furthering their policy aims by overturning current law, but that Obama is among Democrats who view court appointments mainly as a means of defending the legal status quo.

Some related new and old posts:

October 16, 2009 in Who Sentences? | Permalink | Comments (4) | TrackBack

"Willingham juror no longer sure of his guilt in Texas case"

The title of this post is the headline from this new CNN piece.  Here are excerpts:

At least one member of the jury that sentenced Cameron Todd Willingham to death in the arson homicides of his three children says she is struggling with the idea that she might have convicted an innocent man.

It has been 17 years since Willingham was convicted in Texas of setting a house fire that killed his children, a crime Willingham vehemently denied right up until his execution in 2004. Since that time, three investigations have concluded arson was not the likely cause of the 1991 fire, including one that arrived in Texas Gov. Rick Perry's office 88 minutes before the scheduled execution....

The controversy has led juror Dorenda Brokofsky to think twice about the decision she made in a jury room in 1992. "I don't sleep at night because of a lot of this," Brokofsky said. "I have gone back and forth in my mind trying to think of anything that we missed. I don't like the fact that years later someone is saying maybe we made a mistake, that the facts aren't what they could've been."

Brokofsky spoke with CNN by phone from her Midwest home. She has long since moved away from tiny Corsicana, Texas, where the fire took place. "I do have doubts now," she said. "I mean, we can only go with what we knew at the time, but I don't like the fact now that maybe this man was executed by our word because of evidence that is not true. It may not be true now. And I don't like the fact that I may have to face my God and explain what I did."

Recent related posts:

October 16, 2009 in Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (4) | TrackBack

"State forced to free 20 violent criminals"

The title of this post is the headline of this very interesting local article from North Carolina.  Here are some of the notable particulars:

Twenty murderers, rapists and robbers sentenced to life in North Carolina prisons in the 1970s will be released at the end of October as a result of recent court rulings.

Most of the inmates are in their 50s and 60s, but many of them were convicted years ago of gruesome crimes that might have kept them locked up longer today. One of them successfully petitioned the courts to recognize that old laws defined a life sentence as 80 years, and that another law cut those sentences in half.

Ten of those scheduled to be released were sex offenders, including men who raped young girls. Seven have spent time on death row. The one woman in the group was convicted of murdering a state trooper while fleeing a bank robbery.

State officials said Thursday they have no choice but to release them. "I am appalled that the state of North Carolina is being forced to release prisoners who have committed the most heinous crimes, without any review of their cases," said Gov. Beverly Perdue.

Thomas Bennett, executive director of the N.C. Victim Assistance Network, worries about the victims' safety and stability. "This will open new wounds and retraumatize crime victims," Bennett said. "These are bad actors. These are not people we want on the streets."

Perdue's office said she was determined to find a way to keep the inmates in prison, but a spokesman for the state's attorney general said it is unlikely she will prevail. "Our lawyers have argued just about everything they can think of to keep this from happening," said Noelle Talley, a spokeswoman for Attorney General Roy Cooper. "The Supreme Court has the final say."

The inmates are scheduled to be released Oct. 29, just 20 days after the N.C. Supreme Court declined to overturn a state Court of Appeals decision that recalculated life sentences applied to crimes committed during the 1970s....

Since 1994, when North Carolina eliminated parole, a life sentence in North Carolina has meant the convict will die behind bars. But only first-degree murder can carry a life sentence, and now, the shortest sentence someone convicted now of first-degree forcible rape can serve is 12 years....

State correction officials have been working furiously to prepare the 20 inmates for their release and alert the victims and their families. Staff spent this week urging relatives of these inmates to take them in on Oct. 29. They have also been trying to track down victims, many of whom have long since lost touch with the court system. "In some cases, there's shock when we call," said Keith Acree, a DOC spokesman. "In other cases, there's uncertainty. In a lot of cases, the best we can do is leave a message on a machine."

In the meantime, Acree said, some local prosecutors and police are rifling through old court files, looking for crimes with which they never bothered to charge these defendants. Other officials are running the inmates' names in a national crime database to see if they are wanted on crimes outside North Carolina. "They are looking for any sort of issue that will allow these people to stay locked up," Acree said.

October 16, 2009 in Sentences Reconsidered | Permalink | Comments (16) | TrackBack

October 15, 2009

Are Republicans likely to return to the "soft-on-crime" playbook in 2010?

This new local article out of New York, headlined "New Drug Law Stirs 2010 Election Battles," prompts the question in the title of this post.  Here are the basics:

Queens Republicans and their Assembly colleagues signaled last week that they will make a major issue of the repealed Rockefeller drug laws in next year’s legislative elections.

Vincent Tabone, vice chairman of the Queens GOP county committee and Republican Assembly campaign committee issued blistering attacks on Governor David Paterson and state Democrats last week when Paterson hailed the start of the judicial diversion program, a key phase of the reformed drug law, at ceremonies in a Brooklyn courthouse.

Tabone, who doubles as 26th AD district leader in Bayside, also used his attack on Paterson to point out that his local Assembly representative, Ann Margaret Carrozza, a Democrat, had voted for the drug law reform which, he said, will clear the way for 1,500 drug felons now in jail to have their sentences reduced and some be let out of jail....

Tabone retorted that Republicans like Senator Frank Padavan and prosecutors and police officers opposed the changes, to no avail. As he and the Assembly GOP see it, more than 1,500 drug felons may be “hitting the streets soon.”  Among those are criminals who “sold drugs to children or sold drugs on school grounds or operated meth labs.”

As regular readers may recall, I was surprised (and perhaps ultimately pleased) that crime and punishment issues were barely discussed in any major elections during the 2008 cycle.  But as this local article suggests, during the 2010 cycle when Republicans may find other issues hard to turn into easy "sound bite," I would not be at all surprised if we start seeing a lot more "soft-on-crime" attack attempts. 

I have reasons to hope that "soft-on-crime" attacks will not prove as effective in 2010 as it might have in decades past.  But only time and lots of political parrying will reveal if we might see these criminal justice issues making an election cycle political return.

Some old posts on crime and politics in the 2008 season:

October 15, 2009 in Who Sentences? | Permalink | Comments (9) | TrackBack

New Senate bill introduced to eliminate crack/powder federal sentencing disparity

As detailed in this new Washington Post article, which is headlined "Senate Bill Would Eliminate Cocaine Sentencing Disparity," Senator Richard Durbin is championing a new bill to eliminate the crack/powder sentencing disparity in federal law. Here are some of the basics:

The Senate's second-ranking Democrat introduced a bill Thursday that would eliminate the sentencing disparity between crack and powdered cocaine, an issue that has frustrated judges, civil rights advocates and drug reform proponents for more than two decades. Under current law, it takes 100 times more powdered cocaine than crack to trigger the same mandatory minimum sentence. Activists say that disparity disproportionately impacts African Americans.

"The sentencing disparity between crack and powder cocaine has contributed to the imprisonment of African Americans at six times the rate of whites and to the United States' position as the world's leader in incarcerations," Majority Whip Richard J. Durbin (D-Ill.) said in a statement. "It's time for us to act."

Durbin's bill would also increase the volume of crack cocaine required to trigger a mandatory prison term, as well as stiffen penalties for large-scale drug traffickers and violent criminals.  The Fair Sentencing Act is co-sponsored by Democrats including Judiciary Committee Chairman Patrick J. Leahy (Vt.), Russell Feingold (Wis.), Benjamin L. Cardin (Md.) and Sheldon Whitehouse (R.I.)....

Some law enforcement officials have advocated eliminating the disparity by increasing the penalties for possession of powder cocaine, rather than, as Durbin's bill does, lowering the sentence for crack.  But those calling for a change in the law also cite economic reasons at a time when budgets are tight, noting that half of federal inmates are imprisoned for drug offenses. The U.S. Sentencing Commission has estimated that wiping away the sentencing disparity could save more than $510 million over 15 years, lawmakers said....

A companion bill in the House has passed the House Judiciary Committee and awaits action in the House Energy and Commerce Committee.  The idea won support from President Obama and Vice President Biden on the campaign trail, and Attorney General Eric H. Holder Jr. has also been supportive, but the administration has yet to announce a formal position on the bills before Congress.

I am pleased to hear this news, but I will not start getting too excited about this bill unless and until some some Republican Senators get behind it or until at least the White House and the Attorney General start expressing support.  In other words, I fear it is going to take a lot more than the usual political suspects to turn these kinds of (long-overdue) proposed reforms into a legal reality.

October 15, 2009 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Race, Class, and Gender | Permalink | Comments (1) | TrackBack

Time magazine asks "Should Sex Offenders Be Barred from Church?"

In this new piece, headlined "Should Sex Offenders Be Barred from Church?," Time magazine asks a question that always seems certain to prompt lots of different reactions from lots of different people in and outside the criminal justice system.  Here are some notable excerpts from this Time piece:

North Carolina is a proud member of the so-called Bible Belt of states that take their religion seriously.  So some eyebrows were raised when James Nichols was arrested for attending church.

His offense? Nichols, a convicted sex offender, had chosen to worship at a church that has a nursery where kids play while their parents pray.  Now Nichols, 31, who only recently got out of prison, is fighting back, challenging the legality of a new law that took effect in December prohibiting registered sex offenders from coming within 300 ft. — nearly a football field's length — of any facility devoted to the use, care or supervision of minors.

As more states have adopted laws regulating where sex offenders can go, it was only a matter of time before the noble goal of protecting children butted heads with the sacrosanct First Amendment right to worship where and when you choose.  Which takes precedence?

"This law makes it illegal to do things that are not wrong, like go to church," says Glen Gerding, Nichols' attorney. "When does the state stop interfering with a church's business? Will pastors be charged as an accessory for letting a known sex offender sit in a front-row pew and worship?"...

As soon as North Carolina's law went into effect in December, Katy Parker, legal director for the state's American Civil Liberties Union (ACLU) chapter, started fielding calls.  Offenders wanted to know if the law prevented them from going to church; pastors worried it would keep worshippers away.

Parker says the law was so vague that she couldn't offer advice, but she did put out the word to defense attorneys that should they wind up representing someone accused of breaking the law, the ACLU wanted to hear about it.  Nichols' March apprehension is one of two religion-based arrests that Parker is aware of.  "It's unbelievable that the N.C. state legislature and the people of North Carolina would not want someone to go to church for spiritual reasons and for rehabilitative reasons," says Parker.

But others think the ACLU is missing the point.  The premise of the law is sound, says Laurence Tribe, a constitutional-law expert at Harvard.  "If the moment you enter a church you don a cloak of immunity from the rule of law, then churches would become sanctuaries for crime," says Tribe....

Only time — and judges' decisions — will determine whether the new law bars offenders from attending any church (where children might attend) or just those with child-care facilities. What is clear is that those who hammered out the small print of the legislation are sticking by it.

David Hoyle, the state senator who sponsored the bill, says it took two years to pass, partly because legal advisers took care to word it to withstand legal challenges. The law is named for Jessica Lunsford, the Florida girl who was kidnapped and killed in 2005 by a convicted sex offender. Lunsford was born in Hoyle's district and attended school in the tiny town of Dallas, where Hoyle lives. He still talks to her father regularly; her cousin will serve as a senate page for Hoyle next year.

"I got e-mails calling me the anti-Christ and saying I'm going to hell, but we want to make the law just as strong as we can," says Hoyle. "We feel it is a good law.  When a person takes advantage of a child, I don't worry about their constitutional rights."

I am not sure what I find more notable and remarkable in this Time piece: (1)  the fact that one of the famous (supposedly liberal) constitutional scholars, Professor Larry Tribe, is quoted in this piece apparently defending the soundness of a law that seems to make it a crime for certain people to go to church, or (2) that a state senator seems to be proud about not having any worry about some persons' constitutional rights.  I suppose I am not all that surprised by the state senator's quote, but I was certainly surprised to see Professor Tribe quoted in defense of the prosecution of James Nichols for attending church.

Some recent related posts:

October 15, 2009 in Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Willingham case and Texas Gov continuing to make headlines

I am getting the sense that the controversy over Texas's execution of Cameron Todd Willingham and subsequent investigation of the case will be going on for quite sometime.  But today brings these especially notable headlines from various newspapers on the matter:

The final linked story comes from the Dallas Morning News, and it links to this blog post from Glenn Smith while providing this remarkable report:

It turns out that Perry's general counsel when Perry denied a stay of execution for Cameron Todd Willingham subsequently benefited in his own arson case a few years laterby citing the same kind of forensic arson investigators that Perry has dismissed in the Willingham case....

The governor's general counsel, David Medina, was subsequently appointed to the Texas Supreme Court.  In a bizarre turn, Medina and his wife were indicted in 2007 in their own arson-related case. They were accused of tampering with evidence in a fire at their home.  The Medinas hired experts who found that the arson investigation was flawedand they were cleared of all charges.

Says Smith: The parallel is incredible, really. The indictment against Francisca Medina was dismissed because independent experts said the fire could have been started by faulty wiring. Willingham was executed after Perry's office rejected an independent expert who said the fire that killed the Willingham children was probably not arson, but caused by faulty wiring.

If all this is all trueand a Justice now sitting on the Texas Supreme Court prevailed on the same basic arguments that he deemed insufficient to keep Texas from executing Willingham —  all I can say is: Wowsa!?!

October 15, 2009 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (7) | TrackBack

"Lethal Injection Draws Scrutiny in Some States"

The title of this post is the headline of this article from today's Wall Street Journal.  Here are excerpts from an effective article:

Despite the many arguments over whether criminals should be put to death, states thought they had settled at least one matter: the best way to carry out an execution. Largely gone are the electric chairs, firing squads and hangman's nooses of yore.  Most of the 35 states where capital punishment is legal require the use of lethal injection -- a combination of chemicals inserted intravenously. In a handful of states, condemned inmates can request that another method, in most cases electrocution, be used.

But a recent botched execution has triggered debate over whether alternative approaches to injections should be considered....

Some experts say states have bypassed the most reliable execution methods to save face with the public. Deborah Denno, a Fordham University law professor who has written articles on capital punishment, believes firing squads comprised of professional shooters could handle executions more quickly and flawlessly, though she concedes that cultural distaste with firing squads means it is unlikely to be widely adopted. "We've known for a long time that there are better methods, but states don't want to look bad and horrifying," she says.  The last firing squad execution took place in Utah in 1996....

Maryland has suspended its use of the death penalty while a state commission reviews whether lethal injection causes undue pain and whether prison staff are sufficiently trained to carry out the process. Executions fall to correctional employees because physicians refuse to participate, citing their oath to "save lives, not take lives," says Democratic state Sen. Paul Pinsky, co-chairman of the commission and an opponent of the death penalty.  Two other states, California and North Carolina, also have suspended lethal injection while the procedure is reviewed, effectively imposing a moratorium on the death penalty in those states.

October 15, 2009 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (2) | TrackBack

Thoughtful reflections on juve LWOP from Minnesota

As noted in this post, last week the Minnesota Supreme Court rejected constitutional arguments against an LWOP sentence for 17-year-old murderer.  That ruling has prompted this thoughtful commentary, headlined "The kids are not alright: Minnesota minors who kill can go to jail for life with no chance of getting out." Here are snippets:

Last Thursday, the Minnesota Supreme Court upheld Martin’s sentence, saying it was not a violation of the federal or state constitution. Minnesota’s decision comes at a critical time for judicial consideration of juvenile sentences. On Nov. 9, the United States Supreme Court is scheduled to hear oral arguments on whether sentencing juveniles to life without parole for non-homicidal crimes is unconstitutional. To oversimplify things, the decision faced by the courts is whether life sentences meted out to offending minors violates the Eighth Amendment to the U.S. Constitution, which bans “cruel and unusual punishments.” Minnesota’s state constitution, which was also considered in Martin’s case, however, bans “cruel or unusual punishment.”

Before jumping to any conclusions, consider how important some of the issues involved are. These kids have been convicted of committing horrible crimes. You don’t get life without parole for vandalizing the neighbor’s garage....

I was talking about these cases with my friend and classmate Rob Crist, who I think summed things up perfectly with a question: “What do you do with a kid like that?” For some states, the solution is to lock the kids up for the rest of their lives. “The juvenile system has been utterly incapable of doing anything with Mr. Sullivan, even though Sullivan had been given opportunity after opportunity to upright himself and take advantage of the second and third chances he’s been given,” the prosecution’s brief states, quoting the trial judge.

Yet, despite the horror of the acts themselves, many argue that the kids deserve a second chance on account of their age. Sullivan’s defense team’s brief before the Supreme Court lists all the sociopsychological reasons against harsh sentences for children....

Any time a juvenile commits a violent crime, it’s already a tragedy. I can’t help but think that a child like Joseph Sullivan doesn’t do what he did unless a long line of adults — people like his teachers, parents or others in his surrounding community — had failed to teach him responsibility all along.

Somehow, the world has gotten to the point where kids are killers and rapists long before they can graduate from high school. As horrible as this is, I’m skeptical that the best way to deal with our youngest criminal offenders is to lock them up and throw away the key.

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

October 15, 2009 in Graham and Sullivan Eighth Amendment cases, Offender Characteristics | Permalink | Comments (6) | TrackBack

October 14, 2009

"Incarceration American-Style"

The title of this post is the title of this new must-read piece from Professor Sharon Dolovich that is now available via SSRN. Here is the abstract:

In the United States today, incarceration is more than just a mode of criminal punishment.  It is a distinct cultural practice with its own aesthetic and technique, a practice that has emerged in recent decades as a catch-all mechanism for managing social ills.  In this essay, I argue that this emergent carceral system has become self-generating — that American-style incarceration, through the conditions it inflicts, produces the very conduct society claims to abhor and thereby guarantees a steady supply of offenders whose incarceration the public will continue to demand.  I argue, moreover, that this reproductive process works to create a class of permanently marginalized and degraded noncitizens — disproportionately poor people of color — who are marked out by the fact of their incarceration for perpetual social exclusion and ongoing social control.  This essay serves as the Foreword to a symposium in the Harvard Law & Policy Review addressing the costs of mass incarceration.

October 14, 2009 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4) | TrackBack

Effective coverage of SCOTUS criminal forfeiture case argued today

Over at The Volokh Conspiracy in this post, Ilya Somin has lots of effective coverage of Alvarez v. Smith, a criminal-justice-related forfeiture case heard by the Supreme Court. Here is part of his effective summary of the argument as it went off today:

Somewhat surprisingly, many of the justices seem to think that the case should be dismissed on technical mootness grounds. If this were really a problem, one wonders why the Court agreed to hear the case in the first place, focusing on the property rights issue in its official question presented.  Still, a dismissal on procedural grounds would be far less dangerous than a decision overruling the Seventh Circuit decision, which I feared might happen.  The oral argument transcript also suggests that many of the justices – both liberal and conservative – are skeptical of the government’s position on the merits.  They were clearly not pleased with the government lawyer’s admission that his position implies that the police could hold valuable property for a year or longer without any kind of hearing.  At the same time, some of the justices seem to believe that the Seventh Circuit ruling would hamper the police unduly.

The transcript from oral argument in Alvarez v. Smith (08-351) is available here.

October 14, 2009 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

US Sentencing Commission regional hearing in Denver next week

As detailed in this brief public notice, the US Sentencing Commission has another one of its regional public hearings on tap for next week.  This fifth regional public hearing is scheduled for October 20-21, 2009, in Denver, Colorado, in Mineral Hall at the Hyatt Regency Denver.

As detailed in this official agenda, another fascinating group of invited witnesses are scheduled to testify regarding federal sentencing policy in this regional hearing.  I suspect some of the written testimony will be available via the USSC's website next week, and I have found all the regional public hearing testimony worth reading.  

Finally, I cannot help but note again that this regional session lacks any "View from Academia" (although I see that former District Judge and now Professor Paul Cassell is scheduled to testify on the "Community Impact" panel).  The first three regional hearings (which were in Atlanta, Stanford and New York City) all included a panel of academics, but now the Sentencing Commissioners appears disinterested in hearing about how the federal sentencing system looks from various regions of the ivory tower.

October 14, 2009 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

"Slaw and Order: Hot-Dog Stand in Chicago Triggers a Frank Debate"

The title of this post is the amusing headline of this serious article from the front-page of today's Wall Street Journal.  Here is how the piece starts:

When James Andrews opened a hot-dog stand on this city's rough West Side, he thought he was doing a community service by hiring ex-convicts.  But some in the neighborhood think the name he chose -- Felony Franks -- is a crime.

An alderman has refused Mr. Andrews permission to hang a new sign or build a drive-through lane. A pastor accused the restaurant owner, who is not an ex-convict, of "pimping out" the community. Members of a neighborhood association have vowed to stay away from Felony Franks until the name is changed and the décor -- including paintings of cartoon hot dogs in prison stripes -- is removed. "I don't understand it," Mr. Andrews says. "I really don't."

The 64-year-old businessman has long employed ex-convicts at his main business, a company that supplies paper goods to restaurants.  He says he thinks people deserve a second chance and felons need stable jobs so they don't add to homelessness.  He thought of opening a hot-dog stand three years ago while driving past one. The name "Felony Franks" just popped into his head, he says.

October 14, 2009 in Reentry and community supervision | Permalink | Comments (6) | TrackBack

Major media coverage of yesterday's big SCOTUS action

Thanks to How Appealing, one can find at this linkmajor stories discussing the Supreme Court's grant of cert in Jeff Skilling's appeal and at links here and here stories discussing the oral argument in the Padilla plea case and the Spisak capital case. 

The opening paragraph of Adam Liptak's New York Times story about the Padilla case capture effectively my reaction to the oral argument transcript:

Several Supreme Court justices on Tuesday appeared sympathetic to a criminal defendant who unwittingly agreed to be deported by pleading guilty to a drug crime. But the justices seemed uncertain about whether they could fashion a legal rule that would address extreme cases without causing turmoil in the criminal justice system.

October 14, 2009 in Who Sentences? | Permalink | Comments (11) | TrackBack

Latest Gallup poll showing support for death penalty reamins strong

0w0agwqyv06y25k3lorgxq As detailed in this Gallup report, which is headlined "In U.S., Two-Thirds Continue to Support Death Penalty," the latest, greatest polling numbers show that "65% of Americans continue to support the use of the death penalty for persons convicted of murder, while 31% oppose it -- continuing a trend that has shown little change over the last six years."  Here are more of the highlights from the report:

Gallup's death-penalty data stretch back more than seven decades -- making attitudes toward the death penalty one of Gallup's oldest trends. Gallup's earliest reading, in 1936, found that 59% of Americans supported the use of the death penalty in cases of murder, compared to 38% who opposed it. The all-time high level of 80% support came in September 1994, just before the midterm elections that swept Democrats out of power and at a time when Americans most often cited crime as the most important problem facing the nation. The low points came in the period of time from the mid-1950s through the early 1970s. During some of this time, the death penalty was illegal, and support dropped as low as 42% in 1966.

This year's update also shows that nearly half (49%) of Americans say the death penalty is not imposed often enough, roughly in line with the trend on this measure since 2002. Twenty-four percent say it is imposed "about the right amount," while 20% say it is imposed too often -- a percentage that has been only as high as 23% in recent years....

Another argument [made by opponents] against the death penalty focuses on cases in which it has been shown that innocent people have been put to death. The finality of execution obviously precludes the possibility of redress if, at some later point, DNA or other evidence finds that the individual in question was wrongly convicted of his or her crime. The American public would appear to be somewhat sympathetic to this argument: this year's poll finds 59% of Americans agreeing that within the last five years, "a person has been executed under the death penalty who was, in fact, innocent of the crime he or she was charged with." A little less than a third disagree.

However, for many Americans, agreement with the assertion that innocent people have been put to death does not preclude simultaneous endorsement of the death penalty. A third of all Americans, 34%, believe an innocent person has been executed and at the same time support the death penalty. This is higher than the 23% who believe an innocent person has been executed and simultaneously oppose the death penalty. Looked at differently, the data show that 57% of those who believe an innocent person has been executed also support the death penalty. This is significantly higher than the 39% who hold this belief and (perhaps more consistently) oppose the death penalty.

October 14, 2009 in Death Penalty Reforms | Permalink | Comments (3) | TrackBack

October 13, 2009

Media takes and the transcripts of today's SCOTUS arguments

As noted in this prior post, the Supreme Court heard two criminal cases today with significant sentencing implications, Padilla and Spisak.   Here are links to two AP reports on the arguments:

These AP reports suggest that the arguments went as was to be expected: in Padilla, the Justices seemed concerned about the potential implications of a ruling on the defendant's behalf;  in Spisak, the Justices seemed concerned about the Sixth Circuit's reasons for reversing another death sentence.

I plan to read both oral argument transcripts ASAP, and links for everyone via can be had via SCOTUSblog: here for Padilla v. Kentucky (08-651) and here for Smith v. Spisak (08-724). 

October 13, 2009 | Permalink | Comments (10) | TrackBack

Interesting report on "Crack the Disparity" coalition of the Justice Roundtable

Via e-mail I received an interesting report concerning legislative briefings that took place today in the House and Senate which were entitled, “Crack Cocaine Sentencing: Exploring & Examining the Issues.” Here are the basics:

The breakfast and luncheon briefings brought together Republicans and Democrats, the left and the right, faith-based, academic, agency, and impacted to address this 23 year long issue. Over 13 Senate offices were represented and 26 House offices, in addition to interested persons across the ideological spectrum. The Senate briefing room was full, and there was standing room only on the House side.  Panelists included:

  • Chris Byrnes, Author of The Federalist Society’s white paper, “Proposals to Eliminate Sentencing Disparities Between Crack and Powder Cocaine Offenses”
  • Lisa Rich, Director of Legislative Affairs, U.S. Sentencing Commission
  • Pat Nolan, Vice President, Prison Fellowship
  • Paul Butler, former prosecutor & Professor, George Washington Law School
  • Lawrence Garrison, impacted person
  • Moderator – Hilary Shelton, Director Washington Bureau NAACP
C-SPAN2 covered the briefing on the Senate side. You can view it at this link.

October 13, 2009 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0) | TrackBack

Should there special doctrines concerning "inflammatory" pre-sentencing publicity?

Among the fascinating aspects of the SCOTUS cert grant in the Skilling case today (basics here) is the pretrial publicity issue raised in the defendant's cert petition. Specifically, here is the second question presented in Skilling's cert petition:

When a presumption of jury prejudice arises because of the widespread community impact of the defendant’s alleged conduct and massive, inflammatory pretrial publicity, whether the government may rebut the presumption of prejudice, and, if so, whether the government must prove beyond a reasonable doubt that no juror was actually prejudiced.

Given that the first question presented in the Skilling cert petition relates to a fraud issue that is already before SCOTUS in two other cases, I cannot help but speculate that the Justices are somewhat interested in this separate claim related to "massive, inflammatory pretrial publicity."  And though I am not fully up-to-speed on the jurisprudence concerning "inflammatory pretrial publicity," I cannot help but speculate (and hope?) that the Skilling case might indirectly prompt lawyers and jurists to give some consideration to whether "massive, inflammatory" pre-sentencing publicity could be the basis for some kind of due process claim in some extreme cases.

Recent related post:

October 13, 2009 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (3) | TrackBack

Should we thank new Justices Alito and Sotomayor for all the big criminal law SCOTUS action?

As detailed in this SCOTUSblog post, three of the four cases in which the Supreme Court granted cert today involve criminal justice issues:

The Supreme Court agreed on Tuesday to rule on claims that “searing media attacks” on longtime Enron executive Jeffrey K. Skilling tainted his criminal trial and conviction on various fraud charges. The case of Skilling v. U.S. (08-1394) also raises an issue on the scope of the federal law punishing the failure to provide “honest services” as a corporate executive....

The other newly granted cases raise these issues: the scope of federal appeals courts’ authority to overturn a conviction that may have been based in part on conduct that was not criminal when it occurred (U.S. v. Marcus, 08-1341, a case in which Justice Sonia Sotomayor is recused, presumably because she was on the Second Circuit Court panel that decided the case earlier);... and whether “gross negligence” by a state-appointed defense attorney in a death penalty case provides a basis for extending the time to file a federal habeas challenge, in a case where the habeas plea was filed late despite repeated instructions from the client (Holland v. Florida, 09-5327).

And, as noted in this postfrom a few weeks ago, three other cases with big-time criminal justice implications were also recently put on the SCOTUS docket.  Add to all this the fact that this Fall's schedule already included a whole bunch of very important criminal justice cases, and I am already prepared to predict that the most notable feature of OT 2009 is its large and consequential criminal law docket.

Though lots of forces surely have been playing a role in the recent docket dynamics, I cannot help but speculate that the addition to the Court of two former prosecutors has been an important factor in these developments.  Both Justices Alito and Sotomayor likely find a range of criminal law topics inherently more interesting than their colleagues, and they also likely understand more fully how important clarity and certainty is to the work of all criminal justice practitioners.  (Another factor could also being the likely upcoming retirement of Justice Stevens: he has always been very engaged in criminal justice cases, and he may be eager to have one last bite at a bunch of criminal law apples.)

Some related old and new posts on related issues:

October 13, 2009 in Who Sentences? | Permalink | Comments (1) | TrackBack

SCOTUS to review fraud convictions of Jeff Skilling, former Enron executive

As detailed in this AP report and this SCOTUSblog post, the biggest and perhaps highest-profile white-collar conviction of recent vintage is going to be reviews by the Supreme Court.  Here is the SCOTUSblog report:

The Supreme Court agreed on Tuesday to rule on claims that “searing media attacks” on longtime Enron executive Jeffrey K. Skilling tainted his criminal trial and conviction on various fraud charges.  The case also raises an issue on the scope of the federal law punishing the failure to provide “honest services” as a corporate executive.  This was one of four cases granted review, to be argued early next year.

I am pretty sure there are no sentencing issues before the Court in the case, but I cannot help but have a feeling that the long sentence initially given to Skilling may have played at least some role in the Justices' determination that this case merited review.

Among the interesting sentencing-related issues going forward is whether Skilling will now request bail pending SCOTUS review.  Conrad Black failed to get such bail when the Supreme Court took up his case, but he (a) had served less time, and (b) was subject to a much shorter sentence.

October 13, 2009 in White-collar sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Split Sixth Circuit reverses SORNA failure-to-register conviction and affirms other sex offender sentence

This morning in US v. Cain, No. 07-4535 (6th Cir. Oct. 13, 2009) (available here), a divided panel of the Sixth Circuit reverse a sex offender's federal conviction for failing to register under SORNA.  Here is how the majority opinion starts:

This appeal requires us to determine when the registration requirements of the federal Sexual Offenders Registration and Notification Act (SORNA) became effective with respect to a defendant who had been convicted of a sexual offense before passage of SORNA.  The Government indicted defendant Cain under 18 U.S.C. § 2250 for traveling from Ohio to Georgia sometime between October 16, 2006, and March 28, 2007, and failing to update his sex offender registration as required by state and federal law.  The circuits are split on whether defendants with pre-SORNA convictions had to comply with SORNA before the Attorney General issued an implementing regulation.  Because SORNA explicitly required the Attorney General to specify the applicability of the Act to persons convicted prior to the effective date of SORNA, and because the Attorney General did not promulgate a regulation making that determination in compliance with the Administrative Procedure Act, Cain was not subject to SORNA’s requirements during the period indicated in the indictment. Reversal is therefore required.

The Sixth Circuit today also split (in complicated ways) in affirming in another case the significant sentence given to "a decorated U.S. Air Force veteran in his mid-50’s" who pleaded guilty to one count of traveling with intent to engage in illicit sexual conduct with a teenager.  The ruling in US v. Lay, No. 07-4062 (6th Cir. Oct. 13, 2009) (available here), is perhaps another (lengthy) must-read for anyone dealing with federal sex offense cases these days.

October 13, 2009 in Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

"Should Freedom of Worship Apply to Sex Offenders?"

The title of this post is the headline of this new item at the"Civil Religion" section of the St. Louis Post-Dispatch, which riffs off the recent AP story discussing a North Carolina sex offender suing to protect his right to attend church. In response to the AP story, I wondered in this post  "What would Jesus do?" and this St. Louis Post-Dispatch columnist asks a similar question:

After all, he was known to hang out with some unsavory characters in his day: liars, cheats, thieves, prostitutes, violent militants. Heck, some of these he even invited into his inner circle!

However, missing from that list is sex offenders. I wonder, would Jesus have been as quick to accept them?

Some recent related posts:

October 13, 2009 in Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Texas legislature to start looking into Willingham case

This news update from the Dallas Morning News, headlined "Senate committee will examine Todd Willingham case," provides this report on the latest developments surrounding the Todd Willlingham case investigation:

Sen. John Whitmire said to mark Nov. 10 on the calendar in pencil.  That's when he expects the Senate Criminal Justice Committee to convene a special hearing to see what's going on with the Texas Forensic Science Commission and its investigation into the arson evidence used in the Cameron Todd Willingham case.

The young and little-known agency was upended by Gov. Rick Perry, who replaced his four appointees on the board about 10 days ago.  His office said the governor was just trading out appointees whose terms had ended, but there are several indications that Perry was concerned about the direction of the investigation.  First, his assistant general counsel started sitting in on their meetings. Second, his four appointees got the hook just two days before a big public hearing on the Willingham case.

Willingham was executed after a review by Perry in February 2004. Perry has been dismissive of arson experts and scientists who now say there was virtually no evidence of arson in the case.  But scrutiny of the Willingham conviction has been gathering steam and anti-death penalty advocates are highlighting it as a case of an innocent man executed.

Recent related posts:

October 13, 2009 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

October 12, 2009

A big SCOTUS oral argument week on tap for sentencing fans

As detailed in this SCOTUSblog post and in this CrimProf post, the Supreme Court is hearing oral argument on three notable sentencing-related cases during this abbreviated week.  Specifically, these three (of my list of top 10) sentencing cases to watch this term are to be argued in the next two days (with links and descriptions from SCOTUSwiki):

To be argued Tuesday, October 13:

To be argued Wednesday, October 14:

I suspect that Spisak and Alvarez might get the most press attention, but I think Padillais the case that could prove to be the most consequential.  All three cases are likely to be quite significant if the Justices ultimately resolve them in "big" ways; all three may well be forgotten before long if the Justices embrace a minimalist approach to their decision-making.   As always, I heartily welcome and encourage pre-argument predictions and punditry on any or all of these SCOTUS cases in the comments.

October 12, 2009 in Who Sentences? | Permalink | Comments (4) | TrackBack

"The High Cost of Empty Prisons"

The title of this post is the headline of this op-ed in today's New York Times. Here are excerpts:

Last Wednesday, changes to New York’s notorious Rockefeller drug laws went into effect, allowing judges to shorten the prison terms of some nonviolent offenders. This measure will further reduce New York’s prison population, which has already declined, in the past 10 years, from about 71,600 in 1999 to about 59,300 today. (The state’s crime rate also dropped substantially during that time.)

Nevertheless, mainly because of opposition from the correction officers’ union and politicians from the upstate areas where most of our correctional facilities are, the state has been slow to close prisons.  It was not until earlier this year that policymakers in Albany, confronted with fiscal crisis, mustered the will to shut three prison camps and seven prison annexes — a total of about 2,250 prison beds — in a move that is expected to save $52 million over the next two years.

But the state could go further.  The prison system still has more than 5,000 empty beds in 69 prisons.  What’s more, there are other ways to lower the prison population.  For starters, state lawmakers could repeal the Rockefeller mandatory sentencing provisions that remain on the books. They could also increase the number of participants on work release.  In 1994, more than 27,000 people were in this time-tested program that helps them manage the transition back to their communities.  Today, about 2,500 are enrolled.

In addition, the state could reduce the number of people — last year, more than 9,000 — who are returned to prison for technical parole violations like missing a meeting with an officer or breaking curfew.  Most experts agree that for about half of these people it would be safer and smarter to enroll them in re-entry programs or provide more supervision.  Also, more prisoners with good institutional records could be given parole.  And eligibility for so-called merit time, which reduces prison terms for inmates who complete educational and other programs, could be expanded to people convicted of violent offenses many years ago....

New York can now help point criminal justice in a more sensible and constructive direction — and show other states how to save money — by downsizing its prison system.

October 12, 2009 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (5) | TrackBack

A partially justified(?) celebration of "Diversity on the federal bench"

Carl Tobias has this new op-ed in the National Law Journal, which is headlined "Diversity on the federal bench: The Obama administration deserves credit for nominating large numbers and percentages of highly qualified, diverse candidates."  Here is a snippet:

Obama has adopted measures that will increase ethnic and gender diversity, as manifested in his judicial nominations to date.  Justice Sonia Sotomayor is the classic example.  Moreover, his 10 appeals court nominees include three African-Americans, one Asian-American and four women, while his 10 district court nominees include four African-Americans, three Asian-Americans, one Latino and four women.

Two African-American circuit nominees, highly regarded sitting district judges Andre Davis and Joseph Greenaway, earned well-qualified American Bar Association ratings, the organization's highest ranking.  The third, well-respected Rhode Island Superior Court Associate Justice O. Rogeriee Thompson, was nominated last week and has yet to receive an ABA ranking.  The four Asian-American nominees would increase by 36% the number of Asian-American judges.  They include Southern District of New York Judge Denny Chin, who would be the first Asian-American judge on the U.S. Court of Appeals for the 2d Circuit; California Superior Court Judge Jacqueline Nguyen, who would be the first Vietnamese-American district judge; and Magistrate Judge Edward Chen, who would be the first Asian-American member of the Northern District of California. 

I share the sentiment that President Obama should be credited for impressive ethnic and gender diversity in his early judicial nominations.  But, as this brief snippet highlights, the Obama nominees are remarkable for a profound lack of diversity concerning their pre-nomination positions: nearly all of Obama's federal judicial nominees have involved persons who are already judges.

As I have said in prior posts, I suspect that Obama's remarkable affinity for nominating persons who are already judges to the federal bench is mostly a reflections of his Administration's interest in playing matters relatively safe with early judicial nominees.  Nevertheless, I hope before too long that the chief criteria being used for selecting Obama judicial nominees soon extends beyond the apparent requirement that the prosepctive nominee is already a judge.

Some related new and old posts:

October 12, 2009 in Who Sentences? | Permalink | Comments (2) | TrackBack

How will Ohio's lethal injection review impact other state execution protocols?

The question in the title of this post is prompted by this new piece in the Washington Post, which is headlined "Execution Methods Examined: Ohio's Review After Botched Injection May Have Wide Impact." The piece mainly reviews the basic facts surrounding Ohio's failed execution attempt last month and the subsequent delay of other scheduled Ohio executions.  But the piece also speculates that what happens in Ohio could have ripples elsewhere:

[Ohio Governor Ted] Strickland's decision to delay two more executions and review the way Ohio has executed 32 prisoners since 1999 could influence the way condemned prisoners elsewhere are put to death, according to experts on the death penalty.

"Everything's on the table at this point," said Julie Walburn, spokeswoman for the Ohio corrections department, which has overseen two similar situations since 2006.  In the other cases, technicians eventually found veins, and the prisoners were executed.

Walburn said the Strickland administration is all but certain to revise its protocols to deal with cases like Broom's.  State officials are also analyzing the effectiveness of the existing three-drug combination and other ways to kill a person with a lethal injection.  "We are taking a very studied approach.  This is a complex issue, and we are certainly not going to rush our examination," Walburn said, explaining that Strickland is prepared to delay the scheduled Dec. 8 execution of Kenneth Biros if the new rules are not ready.

"Other states will be watching," said Richard Dieter, executive director of the Death Penalty Information Center, who reported that several states, including Maryland, are working on lethal injection protocols....

Ohio's "troubling difficulties" in executing Broom and two other inmates, as the 6th Circuit put it, have not led any other governors to delay executions.  When Alabama executed Max Payne on Thursday, he became by Dieter's count the 40th person in the United States to die by lethal injection this year.

Though lots might be said about the Post story, my first reaction to Julie Walburn's comments is to suspect it may now be a realllllllllly loooong time before Ohio gets around to executing a condemned prison again.  Indeed, I am now thinking there is a decent chance Ohio will not attempt another execution until deep into 2010 and maybe not even then.

Some new and old related posts on Ohio developments and other lethal injection issues:

October 12, 2009 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Interesting local coverage of "sexting" problem

I just notices a pair of new articles in the Columbus Ledger-Enquirer reporting on the modern social problem of "sexting." The piece, available here and here, are headlined "Teens often don't grasp the consequences of sexting" and "Criminal charges from sexting can be heavy."  Here is the sentencing part of the story from second article, which describes parts of applicable Georgia law:

Sexting is a crime. When those photographs involve a minor and are of a sexual nature, they can be considered child pornography and lead to criminal prosecution.

Anyone caught possessing, distributing or manufacturing such pictures — even if they themselves are under age — can be charged with a felony that, depending on the circumstances, could carry a prison term ranging from 12 months to 20 years in prison.  Anyone convicted of these crimes, which include child molestation, possession/distribution of child pornography and enticing a minor will also be labeled as a sex offender.

“All of which are felonies,” said Sgt. Debra Bohannon with the Sex Crimes Unit of the Columbus Police Department. “That’s not even something these kids or their parents are thinking about. But they should.”

Sexual exploitation of a child, among the most common charges that Bohannon and the Sex Crimes Unit pursues in cases that might be defined as sexting, carries a penalty of no less than five and no more than 20 years in prison. “It depends on the totality of the crime,” Bohannon said. “It depends on the age of the sender, the age of the receiver, what was sent and how much was in their possession. There are a variety of circumstances that play into the exact charges that are filed.”

While specific numbers are difficult to calculate given the nature of sexting, Bohannon said the Sex Crimes Unit has been called in to investigate “numerous” cases involving what would be considered child pornography that’s been either captured or distributed by cell phones.

Her most recent case took place in mid-August and involved two 12-year-olds. No charges were filed. “A majority of the kids we see are in middle school,” Bohannon said. “We see some in high school, but most are sixth-, seventh- and eighth-grade kids. And I’d be willing to say that a high, high percentage of the actual cases are handled in-house, either by the schools or by their parents.

Some related "sexting" posts:

October 12, 2009 in Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (18) | TrackBack

Still more changes in Texas panel looking at potential wrongful execution

This new piece from CNN, headlined "Fourth member replaced on Texas panel probing execution," reports on yet more tumult surrounding the Texas case thought by many to be evidence of an innocent person wrongfully executed. Here is how this piece starts:

Texas Gov. Rick Perry has removed a fourth member of a state commission charged with investigating claims that an innocent man may have been executed, his office said.

The Texas governor has now replaced all of the four members that, under law, he is allowed to appoint to the commission. The remaining five members are appointed by the state's lieutenant governor and attorney general. Perry's critics say his actions are politically motivated, a charge he denies.

The investigation into claims that faulty evidence led Texas to execute an innocent man in 2004 was at a "crucial point" when the shakeup occurred, one of the replaced members said.

The commission was to hear from the author of a scathing report in the case of the executed man, Cameron Todd Willingham, when Perry announced on September 30 that he would replace three members. The session was postponed indefinitely because of the new appointments, and Perry's critics accused him of trying to quash the Willingham probe.

Recent related posts:

October 12, 2009 in Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (5) | TrackBack

New article on "Reconsidering Deference" in the appellate review of sentences

I just noticed here on SSRN that Professor Michael O'Hear has yet another important new piece concerning appellate review of sentences.  This new piece is titled "Appellate Review of Sentences: Reconsidering Deference," and here is the abstract:

American appellate courts have long resisted calls that they play a more robust role in the sentencing process, insisting that they must defer to what they characterize as the superior sentencing competence of trial judges.  This position is unfortunate insofar as rigorous appellate review might advance uniformity and other rule-of-law values that are threatened by broad trial-court discretion.  This Article thus provides the first systematic critique of the appellate courts’ standard justifications for deferring to trial-court sentencing decisions.  For instance, these justifications are shown to be based on premises that are inconsistent with empirical research on cognition and decision-making.  Despite the shortcomings of the standard justifications, the Article suggests that there is a stronger argument for deference that is based on the trial judge’s background knowledge regarding the particular circumstances of the local community and courthouse.  Even the potential benefits of localization, though, do not clearly outweigh the rule-of-law costs of appellate deference. Thus, the Article concludes with a proposal for a sliding-scale approach to deference that strengthens the appellate role, but also accommodates localization values in the cases in which they are most salient.

October 12, 2009 in Booker in the Circuits, Recommended reading, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

The reach of technocorrections in our modern society

I have often blogged about the inevitability of different forms of technocorrections becoming a more regular part of our daily lives, and a few of today's national and internation headlines reinforce my basic instincts on these fronts:

October 12, 2009 in Technocorrections | Permalink | Comments (0) | TrackBack

October 11, 2009

Sunday sentencing sport: "Which elected politician said that?"

After I complete this post, I am heading down to my basement cave for a Sunday sports orgy with baseball, football and golf all vying for my attention.  Before calling it a day, I though I might provide a little sport for sentencing fans in the form of a contest to guess "Which elected politician said that?"  Here are the notable quotes:

1.  "America is the land of the second chance, and when the gates of the prison open, the path ahead should lead to a better life."

2.  "[T]here are thousands of non-violent offenders in the system whose future we cannot ignore.  Let’s focus more resources on rehabilitating those offenders so we can ultimately spend less money locking them up again."

3.  "We should not be resigned to allowing generation after generation to return to prison because they don’t have the tools to break the cycle.  I personally favor a number of these faith-based approaches.  But if there are other approaches, let’s try them.  This is an enormous problem, and since the ’70s, we have basically just said we’ll lock people up.”

4.  "The system has a very strong tendency to change them for the worse.  Everybody knows that, I think. Our current system is fundamentally immoral.”

5.  "I believe that we ought to be doing drug treatment rather than incarceration."

For serious sentencing fans, the first quote should be pretty easy.  And, as a hint for the others, I will add that the elected politicians who said these things are all members of the same political party.  The answers (and other notable quotes) can be found in this document, which I discovered thanks to Scott at Grits for Breakfast.

October 11, 2009 in Reentry and community supervision, Who Sentences? | Permalink | Comments (1) | TrackBack

Is there any good sentencing stuff in C-SPAN's week of SCOTUS programming?

I have not had the time this week to watch any of C-SPAN's "Supreme Court Week" programming.  As described by C-SPAN here, apparently I have missed a lot:

Beginning Sunday October 4 at 9pm and continuing through that entire week — each night at 9pm — C-SPAN will present groundbreaking and unique programs on the Supreme Court. Featuring our original documentary production "The Supreme Court: Home to America's Highest Court" as well as an unprecedented collection of original interviews with all 11 living current and former Supreme Court Justices, Supreme Court week will offer viewers a rare window into the Supreme Court and those that serve there.

Fortunately, it seems this SCOTUS programming is nearly all now available at this link, and so I am wondering if any segments are must-see TV for sentencing fans.  I just watched a few interviews, but nothing sentencing-related jumped out.  But maybe others have noticed stuff that merits a sentencing spotlight.

October 11, 2009 in Who Sentences? | Permalink | Comments (0) | TrackBack

DOJ reviewing some DNA testing waivers in federal plea agreements

This new article in today's Washington Post, which is headlined "Justice Dept. to Review Bush Policy on DNA Test Waivers," spotlights an interesting issues concerning the use of rights waivers in some federal plea agreements. Here are some of the basics:

Attorney General Eric H. Holder Jr. has ordered a review of a little-known Bush administration policy requiring some defendants to waive their right to DNA testing even though that right is guaranteed in a landmark federal law, officials said.

The practice of using DNA waivers began several years ago as a response to the Innocence Protection Act of 2004, which allowed federal inmates to seek post-conviction DNA tests to prove their innocence.  More than 240 wrongly convicted people have been exonerated by such tests, including 17 on death row.

The waivers are filed only in guilty pleas and bar defendants from ever requesting DNA testing, even if new evidence emerges. Prosecutors who use them, including some of the nation's most prominent U.S. attorneys, say people who have admitted guilt should not be able to file frivolous petitions for testing.  They say the wave of DNA exonerations has little impact in federal court because all those found to be innocent were state prisoners, and the waivers apply only to federal charges. DNA evidence is used far more frequently in state courts.

But DNA experts say that's about to change because more sophisticated testing will soon bring biological evidence into federal courtrooms for a wider variety of crimes.  Defense lawyers who have worked on DNA appeals strongly oppose the waivers, saying that innocent people sometimes plead guilty -- mainly to get lighter sentences -- and that denying them the ability to prove their innocence violates a fundamental right.  One quarter of the 243 people exonerated by DNA had falsely confessed to crimes they didn't commit, and 16 of them pleaded guilty....

Interviews and documents show that language allowing for DNA waivers was inserted into the law at the behest of Republican senators and that the Bush Justice Department lobbied against the measure even with the waiver provision.  Soon after the law passed with bipartisan support, the department sent a secret memo to the nation's 94 U.S. attorney's offices urging them to use the waivers, several federal officials familiar with the memo said.

Holder, a former U.S. attorney in the District, has called for expanded DNA testing in federal courts. After inquiries by The Washington Post, his spokesman, Matthew Miller, said Holder "has ordered that the department review its DNA waiver policy."...  Oregon prosecutor Joshua Marquis, who sits on the executive committee of the National District Attorneys Association, said he's never heard of DNA waivers in state court and that the organization opposes the concept. "I think it's important to always leave the door open for actual proof of innocence," he said.

In federal court, the waivers are part of the standard plea agreement filed by prosecutors in the District, Alexandria and Manhattan, which are among the nation's highest-profile U.S. attorney's offices.  Waivers are used in some or all pleas by at least 16 other offices, including such large ones as Chicago and Los Angeles and such smaller ones as Arkansas and West Virginia. Prosecutors in Maryland rarely use the waivers. "It saves us a lot of spurious litigation down the pike," said G.F. Peterman III, acting U.S. attorney in the Middle District of Georgia. "All they have to do is say I'm not guilty, go to trial and they've waived nothing. It's their decision."

Defense attorneys disagree, saying prosecutors give defendants the choice of signing the waiver or not getting the benefits of a plea agreement, which usually include a lighter sentence. "It's a horrendous provision, and I can never get them to take it out," said Christopher Amolsch, a lawyer whose client recently waived DNA testing rights in a cigarette smuggling case in U.S. District Court in Alexandria. Other lawyers said they don't usually fight the waivers, considering it a losing battle....

At least 24 U.S. attorneys don't use the waivers. It could not be determined how many inmates have been affected by the policy, because the remaining 50 U.S. attorney's offices did not respond to inquiries or declined to comment.  It is also unclear how many federal prisoners have filed petitions seeking post-conviction DNA testing since 2004.  Justice Department officials said the number is small but have also said they expect more petitions over time.

Though this Postarticle is focused on waiver of the right to DNA testing, I am hopeful that the Justice Department is examining critically all the disparate and disturbing use of broad waivers in federal plea agreements.  I am glad to see the Post focusing on one part of this issue, but I hope the inquiry into waivers of rights in plea deals extend beyond DNA concerns.

As this article highlights, though the Justice Department and federal prosecutors are often raising concerns about disparate sentencing practices, the reality of federal criminal practice is that plea bargaining practices and plea agreement terms are often wildly disparate from district to district.  The different and disparate fast-track sentencing programs (discussed in the most recent FSR issue) are the most tangible example of prosecutor-produced disparity, but use of different types of waivers is also profound and pervasive, too. 

The most pervasive and pernicious plea agreement waiver involves waivers of the right to appeal.  Though statistics are hard to come by, I suspect that some (if not most or even all) federal districts include appeal waiver in some (if not most or even all) plea agreement.  As I explained in long ago posts here and here right after Booker, I think a strong argument could and should be made that appeal waivers are void as against public policy as enshrined in the Sentencing Reform Act and Booker.  But, to my knowledge, only a very few federal judges and courts refuse to endorse and uphold appeal waivers.

October 11, 2009 in Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

"Prison Time or Restitution?: Sentencing for fraud often a balancing act"

The title of this post is the headline of this article from my local paper, which raises some classic hard questions in the sentencing of economic crimes.  Here are snippets from an interesting and effective piece:

It's unlikely that Melanie Chen's victims will ever recoup the thousands of dollars they lost to her cancer hoax.  A Delaware County Common Pleas judge sentenced Chen on Tuesday to eight years in prison for swindling her in-laws and other relatives and friends out of $792,191 after convincing them that her husband, Phylip, 38, had cancer.

Chen, 30, of Columbus, also was ordered to pay full restitution, but Assistant Prosecutor Bill Owen knows from experience that probably won't happen. The money is long gone....

Chen's victims have conflicting emotions, which isn't unusual in fraud cases, Owen said. Some are more concerned with recovering the stolen money than with punishment, while others seem satisfied that Chen is in prison.  Phylip Chen also faces criminal charges and awaits a trial scheduled for Oct. 27. "It's just very difficult for a victim of an economic crime to ever feel any closure," Owen said.

Sentencing criminals convicted of fraud is a balancing act.  Judges often impose a prison term for financial crimes, especially if the case involves multiple victims, said David Diroll, executive director of the Ohio Criminal Sentencing Commission.  "The dilemma the courts have is, on one hand you have many people bothered by this and outraged that they've been scammed," Diroll said.  "You weigh that against whether sending someone to prison gives them any meaningful shot at restitution."

Before deciding on a sentence, judges consider the loss to victims and the criminal's ability to pay what they owe, Diroll said.  They also consider the person's background, education and employment history.  That's why punishments vary from court to court and judge to judge, even for similar crimes.  Sometimes, judges suspend prison sentences or grant early release from prison so that restitution can be collected sooner.

A state tax agent fired in February for theft recently was ordered to repay the $67,657 she stole from taxpayers over 14 months.  Franklin County Common Pleas Judge Laurel A. Beatty suspended a five-year prison term for Lisa M. Finnell, 41, and ordered her to complete five years of probation instead.  "I told her I preferred her making payments to the taxpayers of Ohio than sitting in a prison cell," Beatty said after Finnell's sentencing on Sept. 30.

But in many cases, the defendant doesn't have the means to pay restitution, particularly when it's a very large amount, said Mark Schweikert, executive director of the Ohio Judicial Conference and a retired judge.  "Each case is unique and has its own set of facts, and each offender has their own set of circumstances," Schweikert said.  "That's why we have judges and not computers making those decisions."

Because prison time imposes lots of tangible costs while providing few tangible benefits to either victims or society, I am always inclined to favor significant economic sanctions for economic crimes.  Specifically, I think both restitution and fines paid to a general victim compensation fund should be regular part of sentencing for all economic crimes. 

My broader hope is that, if and when economic crime victims start seeing efforts by prosecutors and judges to make them whole, these victims will start actively advocating punishments that enhance the chance of successful offender reentry (which should increase the ability of an offender to make restiution) rather than just urging longer prison terms (which generally decreases an offenders economic productivity). 

October 11, 2009 in Criminal Sentences Alternatives, Offense Characteristics, White-collar sentencing | Permalink | Comments (0) | TrackBack