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October 20, 2009

"White Collar Innocence: Irrelevant in the High Stakes Risk Game"

The title of this post is the title of an important and timely new piece by Professor Ellen Podgor.  Here is the abstract:

When one thinks of “wrongful convictions and reliability in the criminal justice process” one often thinks of street crime convictions of defendants later proven innocent through DNA or other scientific evidence.  But this Essay presents a new dimension to this issue— the white collar crime context. Three stories are considered here: Arthur Andersen LLP, Jamie Olis, and Jeffrey Skilling — all who proceeded to trial after criminal charges were brought against them; and contrasting these three with KPMG, Gene Foster, and Andrew Fastow, all who secured plea agreements or deferred prosecution agreements with reduced sentences and finite results.  The concern here is that innocence or guilt does not always frame the judicial process in white collar cases. 

The risk of trial becomes so great that in order to minimize the possible consequences, innocence becomes an irrelevancy.  Although the plea bargain to trial differential existed for many years in crimes outside the white collar crime context, the high sentences now being given to individuals and entities charged with white collar crimes place these crimes in comparable stead with street crimes.  This gives pause to whether the next phase of wrongful convictions might move beyond street crimes into the white collar world.

I am eager to hear reactions to her suggestions that "the next phase of wrongful convictions might move beyond street crimes into the white collar world."

October 20, 2009 in Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack

"U.S. Support for Legalizing Marijuana Reaches New High"

Pot poll The title of this post is the headline of this new Gallup poll report.  Here are some of the very notable particulars: 

Gallup's October Crime poll finds 44% of Americans in favor of making marijuana legal and 54% opposed. U.S. public support for legalizing marijuana was fixed in the 25% range from the late 1970s to the mid-1990s, but acceptance jumped to 31% in 2000 and has continued to grow throughout this decade.

Public opinion is virtually the same on a question that relates to a public policy debate brewing in California -- whether marijuana should be legalized and taxed as a way of raising revenue for state governments.  Just over 4 in 10 Americans (42%) say they would favor this in their own state; 56% are opposed.  Support is markedly higher among residents of the West -- where an outright majority favor the proposal -- than in the South and Midwest. The views of Eastern residents fall about in the middle.

The new findings come as the U.S. Justice Department has reportedly decided to loosen its enforcement of federal anti-marijuana laws by not pursuing individuals who buy or sell small amounts of the drug in conformity with their own states' medical marijuana laws.  This seems likely to meet with U.S. public approval, as previous Gallup polling has found Americans generally sympathetic to legalizing marijuana for medical purposes. In 2003, 75% of Americans favored allowing doctors to legally prescribe marijuana to patients in order to reduce pain and suffering....

Most of the expansion in support for legalizing marijuana since Gallup last measured this in 2005 is seen among women, younger Americans, Democrats, moderates, and liberals.  By comparison, there has been little change in the views of men, seniors, Republicans, independents, and conservatives. Regionally, support has grown the most in the West and Midwest.

Among the most notable findings in this latest poll is the fact that 50% of persons between ages 18 and 49 are reported as favoring making marijuana legal.  Especially since I suspect that this number jump even higher for all voters under 30, I think it will not be long before politicians who are seriously interested in appealing to young voters will have to start showing serious interest in legalizing (or at least decriminalizing) some non-medical marijuana usage.

Some recent related posts:

October 20, 2009 in Drug Offense Sentencing | Permalink | Comments (25) | TrackBack

Federal sentencing in Mob case becomes life imitating art

Fans of the HBO TV series The Sopranos surely remember the fascinating character of Vito Spatafore, who was a subordinate of mob boss Tony Soprano and a closeted gay.  This New York Daily News article reports on a sentencing in federal court yesterday that has life imitating HBO art:

Mob hit man Robert Mormando stunned a veteran Brooklyn judge Monday when he renounced his membership in La Cosa Nostra and — for good measure — acknowledged he was gay.  "That's the first time I've heard this in court," Federal Judge Jack Weinstein said of the mobster's renunciation of his blood oath. "I've asked many Mafia members and they've always refused," added Weinstein who was appointed to the bench in 1967 by President Lyndon Johnson.

Mormando, 44, a divorced father of two sons, was being sentenced for participating in the shooting of Queens bagel store owner Angelo Mugnolo, who was wounded in the driveway of his Howard Beach home in 2003.  The rubout was ordered by Vincent Gotti, the younger brother of late crime boss John Gotti, who suspected the baker was fooling around with his wife. Mormando became a government informant shortly after the shooting....

Defense lawyer Nancy Ennis told the judge Mormando was given the contract a month after he was inducted into the crime family in 2002.  "He was summoned to perform an act that he found totally unacceptable afterward," Ennis said....

Ennis' biggest bombshell was announcing that Mormando is out of the closet.  "He has been openly gay since he left the mob," Ennis said.  Mormando's partner has refused to enter the witness protection program, but they have relocated and together they "live a peaceful working life," she said.

October 20, 2009 in Celebrity sentencings | Permalink | Comments (3) | TrackBack

Interesting little SCOTUS criminal justice action today

As detailed in posts from SCOTUSblog and Crime & Consequences, the biggest news coming from the Supreme Court today is its decision to take up a Gitmo case in Kiyemba, et al., v. Obama, et al. (08-1234), which concerns "whether judges may require the release of Guantanamo prisoners to live in the U.S. itself, which is a case with "broader implications for all issues surrounding release or transfer of detainees."  But, for day-to-day criminal justice fans, a little summary reversal and one sharp dissent from the denial of cert also are noteworthy.  Here is how Lyle Denniston at SCOTUSblog describes the criminal justice action:

Among other actions Tuesday, two Justices filed a strong dissent as the Court refused to hear a new case seeking to test the authority of police to stop a vehicle when they get an anonymous tip that an individual is driving while drunk, but the tip has not been backed up by the officers’ own observations.  Chief Justice John G. Roberts, Jr., joined by Justice Antonin Scalia, said the Court should have granted review of Virginia v. Harris (08-1385).  “The police should have every legitimate tool at their disposal for getting drunk drivers off the road,” Roberts wrote. The Court should have addressed, he said, whether police could stop a possibly drunk driver based on a tip they have not verified.  If that limitation on police is what the Constitution requires, the dissent argued, “the dangerous consequences of this rule are unavoidable…The effect of the rule below will be to grant drunk drivers ‘one free swerve’ before they can legally be pulled over by police.”  The Court’s order and the dissent can be found here.

The Court issued one summary ruling (found here), requiring the Seventh Circuit Court to allow a federal judge to rule on several challenges to the death sentence of an Indiana man, Joseph Corcoran, convicted of four counts of murder.  The Circuit Court had allowed Indiana to reinstate the death sentence for Corcoran even though no court had yet ruled on challenges other than the one that the Circuit Court explicitly rejected.  This was an error, the Justices said Tuesday in their unsigned opinion in Cocoran v. Levenhagen (08-10945). There were no noted dissents.

October 20, 2009 in Who Sentences? | Permalink | Comments (14) | TrackBack

New DPIC report assails costs (and opportunity costs) of death penalty administration

As detailed in this CNN report and this press release, the Death Penalty Information Center has released a new study on the costs of capital punishment administration.  The new study, which is available at this link, is titled "Smart on Crime: Reconsidering the Death Penalty in a Time of Economic Crisis." Here is the start of the report's executive summary:

“Smart on Crime” is a new report from the Death Penalty Information Center that explores the prospect of saving states hundreds of millions of dollars by ending the death penalty.  The report also serves to release a national poll of police chiefs in which they rank the death penalty at the bottom of their priorities for achieving a safer society.  The death penalty in the U.S. is an enormously expensive and wasteful program with no clear benefits.

All of the studies on the cost of capital punishment conclude it is much more expensive than a system with life sentences as the maximum penalty.  In a time of painful budget cutbacks, states are pouring money into a system that results in a declining number of death sentences and executions that are almost exclusively carried out in just one area of the country.  As many states face further deficits, it is an appropriate time to consider whether maintaining the costly death penalty system is being smart on crime.

The nation’s police chiefs rank the death penalty last in their priorities for effective crime reduction. The officers do not believe the death penalty acts as a deterrent to murder, and they rate it as one of most inefficient uses of taxpayer dollars in fighting crime.  Criminologists concur that the death penalty does not effectively reduce the number of murders.

Some recent related posts on the costs of capital punsihment:

October 20, 2009 in Death Penalty Reforms | Permalink | Comments (13) | TrackBack

US Sentencing Commission regional hearing in Denver starts today

As detailed in this prior post, the US Sentencing Commission has another one of its regional public hearings starting today. This fifth regional public hearing is taking place 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.  Much of the written testimony is now linked through the agenda page, and it all looks like worthwhile reading. 

I have found the testimony of federal prosecutors especially interesting from these regional hearings.  Notably, the submitted written testimony from David M. Gaouette, the United States Attorney for the District of Colorado, and of B. Todd Jones, the United States Attorney from the District of Minnesota, both stress the post-Booker sentencing challenges in child porn downloading cases.

October 20, 2009 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

New stay means Ohio executions almost certain not to resume until at least 2010

This new New York Times article, which is headlined "Judge Delays Another Ohio Execution," highlights that my prediction that Ohio will not even close to executing anyone soon is looking pretty solid.  Here are the basics:

A federal judge has indefinitely delayed an execution scheduled for Dec. 8, the fourth execution to be postponed in Ohio since technicians failed for two hours last month to administer lethal drugs to a man convicted of murder and rape.

The execution of Kenneth Biros, 51, convicted of a 1991 murder and attempted rape, was stayed on Monday to allow the state attorney general and defense lawyers to gather more information about Ohio’s lethal injection protocol. The protocol has come under question since the failed execution of Romell Broom on Sept. 15. The judge, Gregory Frost, also indefinitely delayed the second effort to execute Mr. Broom....

Earlier this month, Gov. Ted Strickland postponed the executions of the two men scheduled to die before Mr. Biros, Lawrence R. Reynolds Jr. and Darryl Durr, until spring, to give corrections officials more time to develop backup procedures if another problem occurs in administering lethal drugs by the normal method of inserting intravenous lines into veins in a prisoner’s arms or legs. The state had expected to have new procedures in place in time to execute Mr. Biros on Dec. 8.

Richard Dieter, executive director of the Death Penalty Information Center in Washington, said the repeated postponements and rationale behind them effectively equaled a moratorium on executions in Ohio. “There has been a recognition from the courts and the governor that the issues to be resolved are complex and are going to take time and that no executions should occur until those issues are resolved,” Mr. Dieter said.

A spokeswoman for the governor said a review of execution procedures continued. A spokeswoman for Richard Cordray, the attorney general, said the state was reviewing its legal options.

Some related posts on Ohio lethal injection issues:

October 20, 2009 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (0) | TrackBack

October 19, 2009

Should (and will) SCOTUS discuss standards of review for the Second Amendment when deciding incorporation?

The question in the title of this post is the question that I will be asking the students in my Second Amendment seminar tomorrow.  I think it is a good question without an obvious answer, and one that I suspect is being given some thought by some folks now working on merits or amicus briefs in the McDonald case.  Any astute thoughts, dear readers? 

A few related new and old Second Amendment posts:

October 19, 2009 in Second Amendment issues | Permalink | Comments (3) | TrackBack

Split Seventh Circuit declares that 3553(a) factors cannot be considered in Rule 35(b) reductions

Though the numerical provisions mentioned in the title of this post may only make sense to federal sentencing practitioners, the start of the majority and dissenting opinions in US v. Shelby, No. 08-2729 (7th Cir. Oct. 19, 2009) (available here), spotlights what's at issue in a split panel ruling handed down by the Seventh Circuit today.  Here is how Judge Posner's majority opinion gets started:

Rule 35(b)(2) of the federal criminal rules authorizes the district court, “upon the government’s motion made more than one year after sentencing,” to “reduce a sentence if the defendant’s substantial assistance” falls into specified categories.  The only question we are asked to decide is whether the rule allows the district judge to reduce the sentence on the basis of the factors that he would consider in initial sentencing under the Booker regime — namely the factors listed in 18 U.S.C. § 3553(a).

Here is how Judge Evans's dissent begins:

Judge Kocoras sentenced the then 26-year-old Gregory Shelby to serve 285 months back in 1996. At that time, the judge expressed regrets — the sentence was far too long, he lamented, but his hands were tied by mandatory guidelines that shackled his ability to impose a sentence that was fair and reasonable.  Today, the majority holds that Judge Kocoras overstepped his bounds when he recently reduced the now 40-year-old Shelby’s sentence to a term of 180 months.  Because I would affirm the judge’s well-reasoned decision, I respectfully dissent.

October 19, 2009 in Booker in the Circuits, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

"Attorney General Announces Formal Medical Marijuana Guidelines"

Pot picture The title of this post is the headline of this official press release from the US. Department of Justice.  Here are the highlights (heh, heh, dude, heh, heh, get it.... highlights!):

Attorney General Eric Holder today announced formal guidelines for federal prosecutors in states that have enacted laws authorizing the use of marijuana for medical purposes.  The guidelines make clear that the focus of federal resources should not be on individuals whose actions are in compliance with existing state laws, while underscoring that the Department will continue to prosecute people whose claims of compliance with state and local law conceal operations inconsistent with the terms, conditions, or purposes of those laws.

"It will not be a priority to use federal resources to prosecute patients with serious illnesses or their caregivers who are complying with state laws on medical marijuana, but we will not tolerate drug traffickers who hide behind claims of compliance with state law to mask activities that are clearly illegal," Holder said.  "This balanced policy formalizes a sensible approach that the Department has been following since January: effectively focus our resources on serious drug traffickers while taking into account state and local laws."

The guidelines set forth examples of conduct that would show when individuals are not in clear and unambiguous compliance with applicable state law and may indicate illegal drug trafficking activity of potential federal interest, including unlawful use of firearms, violence, sales to minors, money laundering, amounts of marijuana inconsistent with purported compliance with state or local law, marketing or excessive financial gains similarly inconsistent with state or local law, illegal possession or sale of other controlled substances, and ties to criminal enterprises.

Fourteen states have enacted laws in some form addressing the use of marijuana for medical purposes.  A copy of the guidelines, in a memo from Deputy Attorney General David W. Ogden to United States Attorneys, can be found here.

ABC News has on-line this new story which reflects some of the early press coverage; the piece is headlined "Medical Marijuana Proponents Breathe Easier Under New Guidelines." 

There are, of course, lots of serious and important things to say about these new DOJ guidelines, but to begin let's have some run imagining alternative headlines for the DOJ press release or media coverage of this story.  I'll start with a few silly possibilities:  "Dude, Federalism Is Such A Trip!" or "New Health Care Reform Development for Grateful Dead Fans" or "Massive Breakout of Glaucoma Predicted in 14 States"

October 19, 2009 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack

Are Apprendi and Blakely Justice Stevens' most favorite opinions?

This morning's USA Today includes this lovely front-page articleby Joan Biskupic about Justice Stevens. The piece, which is headlined "Supreme Court's Stevens keeps cards close to robe; Long-serving justice, 89, a force behind the scenes," is a must-read for all SCOTUS fans.  But sentencing fans might take particular note of this line reporting on what Justice Stevens' said during Biskupic's recent interview:

On opinions he finds noteworthy, he cited cases in which he crafted a narrow majority to enhance the role of juries in criminal sentencing.

Of course, the cases referenced here have to be his own 2000 Apprendi decision and the 2004 Blakely decision (which was authored by Justice Scalia, of course).  

The fact that Justice Stevens would make special mention of Apprendi and Blakely in this recent interview leads me to two questions, one backward looking and one forward looking: (1) if Justice Stevens remains proud of his work in Apprendi andBlakely, just why did he end up providing the key fifth vote to limit the reach of this jurisprudence in last Term's Ice case?, and (2) in light of his apparent affinity for Apprendi and Blakely, might Justice Stevens work extra hard this Term (which likely will be his final Term) to reverse the Harris mandatory minimum exception to Apprendi?

Some related recent posts:

October 19, 2009 in Blakely Commentary and News, Blakely in the Supreme Court, Who Sentences? | Permalink | Comments (13) | TrackBack

"Arson case adds new twist to Texas candidates' death penalty stance"

The title of this post is the headline of this interesting new article from the Dallas Morning News, which spotlights just one of the echoes of the new questions surrounding the guilt of executed Texas defendant Cameron Todd Willingham.  Here is how it starts:

As the debate over whether the state executed an innocent man spills over into the governor's race, Rick Perryand Kay Bailey Hutchison are operating by a longtime rule of Texas politics: Don't mess with the death penalty.

Perry defends the execution of Cameron Todd Willingham and assures conservative voters who will decide the Republican primary that the state's system of capital punishment is sound. Hutchison's task is more complicated. She argued that Perry, by politicizing the investigation, poses a threat to the death penalty by casting a cloud over the system.

Recent related posts:

October 19, 2009 in Death Penalty Reforms | Permalink | Comments (2) | TrackBack

UK advocacy group urges motherhood as a sentencing consideration

This new BBC piece, which headlined "Courts 'should consider mothers'," reports on how an advocacy group across the pond is calling for consideration of family values at sentencing:

Magistrates and judges in Wales should take account of whether women are mothers when sentencing them, says a children's charity. Barnado's Cymru said courts "need to look at alternatives to custodial sentences" when dealing with mothers. They should know more about the impact of a sentence on a child, it says.

Laura Tranter said a woman should still face the full range of sentencing "but whether or not she needs to lose ties with her children is another issue". The children's charity said children in Wales who have a parent in prison need better support.

Its report, Every Night You Cry, says that failing to address their needs has a negative impact on their behaviour, claiming that "almost two-thirds of boys with a convicted father go on to offend" if no interventions are made. The charity says there are an estimated 160,000 children in the UK who have a parent in prison, more than twice the number of children in care and six times the number of children on the child protection register.

October 19, 2009 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Sentencing around the world | Permalink | Comments (1) | TrackBack

Should there be an age floor for when a sex offense requires registration?

In the Graham and Sullivan cases, the Supreme Court will be struggling with whether and how to set a constitutional floor on the age at which an offender can be given an LWOP sentence.  This local article, headlined "Group opposes sex-offender registry for youths," spotlights the question of whether there ought also be a floor for when a young sex offender is subject to registration requirements. Here are excerpts from the piece, which also discusses other aspects of state resistance to federal sex offender registration provisions:

Legislation that requires states to publish the names and photos of minors who have been convicted of sex-related offenses in a nationwide public registry is being discouraged by a Washington, D.C.-based group.

Some states already include minors as young as 14 in their own statewide sex-offender registries, but legislation known as the Adam Walsh Child Protection and Safety Act of 2006 is calling for all states to take up the practice for a national registry.  States that don't comply with the act risk a decrease in federal criminal justice funding.  Yet, only one state and one tribe have complied completely since Congress the act became law in 2006.

Local lawyers see a problem with lumping minors with adults in a public sex offender registry. "We're still hoping that part of the act doesn't get passed," said Chris Gardner, chief deputy public defender in San Bernardino County's Human Services Division.

Research does not support the stance that a minor convicted as a sex offender is going to do the same thing as an adult, Gardner said. Studies show the opposite, and the vast majority of kids don't reoffend, he said.  "If a kid's crime is tried in Juvenile Court, where the idea is rehabilitation, it doesn't make sense for there to be any kind of long-standing history or sex registry," Gardner said.

Justice Policy Institute recently reissued a report that details the harm that public registries have on minors, a demographic where criminal justice usually aims for rehabilitation. "It's extremely detrimental to the youth," said Nastassia Walsh, a research associate at JPI.  "It isn't proven to improve community safety at all. It can really harm a kid's chances of having a `normal life."'...

Other states have cited numerous reasons for not complying, including the cost and the need for more equipment, resources and personnel.  A Congressional Budget Office analysis from December 2005 reported the act to cost $1.5billion to enact between 2006 and 2011.

Besides cost, California cited other reasons for not complying with the act: statutory barriers, juvenile privacy issues and constitutional privacy protections, according to an April survey conducted by SEARCH, a national consortium for justice information and statistics.

The National Center for Missing and Exploited Children, which is behind the Adam Walsh Act, estimates there were about 670,000 registered sex offenders in the United States.  But about 100,000 are lost in the system....

Prosecutors say only a limited number of sex-related juvenile crimes in California even qualify for a stay in the Department of Juvenile Justice and publishing in a public registry.

Karen Bell, a deputy district attorney who handles juvenile offenses in San Bernardino County, said she didn't anticipate there would be much support in the state for the labeling of minors through a public registry. "I think the reaction of that of the Legislature of California, and certainly the bench and the bar would be very much against it," Bell said.

October 19, 2009 in Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

October 18, 2009

Reviewing Texas's recent record on capital clemency

The Houston Chronicle has this new article on capital clemency in Texas, which is headlined "Perry uses clemency sparingly on death row; Governor has never called off an execution on a claim of innocence." Here are some notable snippets:

In nearly nine years as Texas governor, Rick Perry has never spared a life based on a claim of innocence and only once delayed an execution in such a case, according to a Chronicle review of public records, clemency statistics and information from the governor's office.

During that same period, officials in other death penalty states granted clemency for humanitarian reasons at least 200 times — 171 based on questions of innocence in Illinois alone.

Texas has executed 200 convicts under Perry's watch, but he has spared just one condemned man's life in a case in which he was not compelled to do so by the U.S. Supreme Court.  In that case, the inmate Perry saved in 2007 was not a killer but the admitted driver of a getaway car, condemned alongside the triggerman in a joint trial under Texas' tough “law of parties.”...

Clemency — the use of executive power to reduce, forgive or delay a sentence — is considered the last fail-safe in the death penalty review process nationwide.  Yet in Texas, it is almost never granted.  In fact, at least 50 of the past 200 executions were carried out without any clemency board review at all, a Chronicle analysis of state execution and parole board statistics shows.  Other death row inmates' final pleas for mercy were rejected for arriving after the board's deadline....

In Texas, alone among the states that use parole boards for execution cases, the board never meets to review applications from the condemned. Instead, its members vote via fax. Efforts to reform the process have been unsuccessful....

Paddy Burwell, a retired Exxon geophysicist who served on the parole board from 1999-2005, recalled several troubling death row reviews when he said he received subtle pressure from other members to vote against clemency. “I don't think they care whether a person is guilty or not guilty,” Burwell said.

October 18, 2009 in Clemency and Pardons, Death Penalty Reforms | Permalink | Comments (5) | TrackBack

New report on mandatory minimum sentences from Pennsylvania Commission on Sentencing

The Pennsylvania Commission on Sentencing late last week released this important research report, which is titled "A Study on the Use and Impact of Mandatory Minimum Sentences."  The study was undertaken at the direction of the state legislature, and it examined 1) the extent to which mandatory sentences are imposed, 2) the processing of mandatory sentencing cases, and 3) the effectiveness of mandatory sentencing with respect to crime reduction.

This local press article, which is headlined "State commission says drug-free school zone law should be repealed," reports on some of the highlights:

In a 490-page report Friday, the Pennsylvania Commission on Sentencing recommended the repeal of the drug-free zone law that prosecutors invoked against Range. The report also advocated raising the threshold of cocaine needed to trigger enhanced penalties for trafficking -- from 2 to 5 grams -- and allowing more drug cases to go through intermediate punishment or boot-camp programs.

The recommendations, part of an overall study of mandatory minimums in the state, offer a change from the mid-1990s, when many of the beefed-up laws were enacted amid a popular mantra of get-tough-on-crime.

Critics say the laws are clogging prisons, breaking state budgets and failing to address the problems they aim to, prompting legislatures to reconsider the wisdom of warehousing offenders when studies show treatment is cheaper and produces less recidivism.

"This year in the budget process was the first year I've heard some serious discussion of the cost, and 'Let's look at those issues,'" said Mark Bergstrom, executive director of the Pennsylvania Commission on Sentencing, which advises the state on sentencing policy. "It's a rare time when I actually think there can be some progress moving forward with these recommendations."

But that may not prove to be the case, because school zones and other heightened penalties are popular among prosecutors and law enforcement officials.

Northampton County District Attorney John Morganelli is a supporter of the state's mandatory minimums, though he believes that more aren't needed. He said the minimums are a useful plea bargaining tool, because prosecutors can trade them for an admission of guilt. He said the goals of school zones are laudable. "It would be a mistake [to repeal them]," Morganelli said. "It would send a bad message that it's OK to deal drugs in school zones."

U.S. Rep. Charlie Dent, R-Lehigh, wrote Pennsylvania's school zone law in 1997 while serving in the state Legislature. He says it has helped keep drugs away from children. "The real issue is if these people were not in prison and on the streets, what would crime be then?" Dent asked.

The commission's report found school zones are "overbroad" and go beyond the goal of preventing drugs from being dealt to children. It also says the 1,000-feet parameter is problematic in dense urban areas and disproportionately affects minorities.

October 18, 2009 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Effective review of the decline of the criminal jury trial in Virginia and elsewhere

The News Virginian has this interesting and effective article, headlined "Number of juried trials slumps both in Virginia, nationwide," that spotlights a trend that many shrewd criminal justice observers have known for some time. Here are excerpts from the piece:

Jury trials remain a favorite of American film and literature but not of the criminal-justice system, where their use long has been in decline here and across the country. The trend has accelerated in recent decades as tougher sentencing laws leave more defendants unwilling to assert a right found in Magna Carta and the U.S. Constitution and that is recognized by all states.

In the year that ended June 30, 2008, little more than 1 percent of felony convictions in Virginia courts were at the hands of jurors. Nearly 90 percent were the result of guilty pleas and the rest in trials before judges.

Guilty pleas help keep courts running efficiently, but as relatively fewer people perform one of the most serious of civic duties, experts believe public confidence in the criminal-justice system, if not justice itself, might suffer.

Josh Bowers, a professor of law at the University of Virginia, said, “We’re already at what would seem to be almost a bare minimum of jury trials for a criminal-justice system that recognizes a jury trial right.” It did not happen overnight.

Thirty years ago, Albert Alschuler, a law professor at the University of Chicago, complained in Time magazine that “here we have an elaborate jury trial system and only 10 percent of the accused get to use it.” “That’s like solving America’s transportation problems by giving 10 percent Cadillacs and making the rest go barefoot,” he said. Reached by telephone recently, Alschuler said “things are much worse” these days.

“Trials and, especially, sentencing proceedings have become ever more complicated, and legislatures have made many additions to the prosecutors’ ‘tool kit,’” he said. The jury trial rate has been cut in half across the country — even more so in Virginia — since Alschuler’s complaint of 1978....

According to the Virginia Criminal Sentencing Commission, in the year that ended June 30, 2008, juries were responsible for just 1.3 percent of 27,195 felony convictions in Virginia — the lowest percentage yet recorded by the commission. Nationally, of the more than 1 million felony convictions in 2004, 95 percent were resolved by guilty pleas, with the remaining 5 percent in judge or jury trials, according to the U.S. Bureau of Justice Statistics.

Bowers, Alschuler and others believe that tough sentencing laws passed by Congress and the states in the 1980s and 1990s in response to rising crime — and predictions of rising crime — are a factor contributing to the national decline in jury trials....

Virginia is one of only a handful of states where juries sentence in addition to determining guilt. Also, since 1994, juries here have been told about a defendant’s prior criminal record when deciding on a sentence. Unlike judges, juries are not informed of the sentencing guidelines and must sentence within the minimum and maximum terms that remain in the state code.

So in cases where the state law calls for a minimum sentence of five years, five years is the best a defendant can hope to get from a jury.  If the defendant pleads guilty, however, a judge complying with the guideline can suspend four years of the five-year term.  Also, because the judge, defendant and the prosecution must all agree to waive a jury trial, by threatening to demand a jury, prosecutors are in a better position to negotiate, or force guilty pleas.

In the first full fiscal year after the 1995 truth-in-sentencing reforms, jury convictions in Virginia were cut in half — from 4 percent of all felonies to 2 percent. The number has risen and fallen since, to the most recent level of 1.3 percent. And since 1995, jury sentences tend to be far stiffer than those from judges.

In a 2004 study of jury sentencing in Virginia and two other states, two professors at the Vanderbilt University School of Law confidentially surveyed judges, prosecutors and defense attorneys. They found that jury sentencing is supported overwhelmingly by Virginia prosecutors — and among some defense attorneys — because they believe it deters jury trials....

John Douglass, a former federal prosecutor and dean of the University of Richmond School of Law, said, “It’s ironic — jury sentencing in Virginia is suppressing the right to jury trial.” “The notion that your opportunity for a jury trial should come at the cost of a significantly higher sentence is troubling,” he said. “It seems odd that a jury can be used as a threat, rather than a right, or an opportunity.”...

Bowers said the trend toward fewer juries was going on before tougher modern sentencing and the use of guidelines.  Long ago, he said, when there were far fewer procedural protections for defendants, there were far more jury trials. “It wasn’t uncommon for a court to hear 20 felony jury trials in a day in the 18th-century court.”...

The full jury trial of today, however, is expensive and time-consuming.  Douglass said heavy caseloads make it difficult to try many cases.  “So prosecutors and defense counsel are looking for an alternative, and it leads to plea bargaining,” he said.

October 18, 2009 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack