October 31, 2009
Murder victims' son seeking to advocate against death penaltyA helpful reader forwarded to me this interesting story out of California, which is headlined "Don't execute killer, slain El Cerrito couple's son says." Here is the start of the piece:
The 20-year-old son of a slain El Cerrito couple is fighting to speak against imposing the death penalty on the uncle who killed his parents, testing for the first time a state law that gave crime victims a greater voice in legal proceedings.
Eric Rogers is scheduled to testify for the prosecution next week during the penalty phase of the murder trial of Edward Wycoff, a 40-year-old Sacramento County truck driver convicted Monday of two counts of first-degree murder for killing his sister and brother-in-law, Paul and Julie Rogers, on Jan. 31, 2006.
While legal precedent limits Eric Rogers to testifying only to the impact the murders have had on his life, Rogers said he wants to tell jurors that he doesn't want Wycoff executed. His parents were strongly opposed to the death penalty, as is he, he said. "I think revenge would bring me closer to the status of my uncle and further from the status of my parents," Eric Rogers told the Times. "To be vengeful in their name would be disrespectful."
Rogers hired Berkeley attorney Ted Cassman to argue that he has a right to voice his opposition to capital punishment under Marsy's Law, also known as Proposition 9 or the Victim's Rights and Protection Act of 2008, which voters approved last November. Marsy's Law gives victims the right to be heard at any legal proceeding. Beyond Rogers' belief that the death penalty is wrong, such a sentence would cause Rogers more pain by subjecting him to 10 to 20 years of appeals on Wycoff's behalf, Cassman said.
Wycoff prosecutor, Mark Peterson, argues that case law states that jurors need to decide whether a defendant deserves death, not how a death sentence would impact others.
"Cruelty, Prison Conditions, and the Eighth Amendment"The title of this post is the title of this new article from Sharon Dolovich appearing in the New York University Law Review. Here is the abstract:
The Eighth Amendment prohibits cruel and unusual punishment, but its normative force derives chiefly from its use of the word cruel. For this prohibition to be meaningful in a society where incarceration is the primary mode of criminal punishment, it is necessary to determine when prison conditions are cruel. Yet the Supreme Court has thus far avoided this question, instead holding in Farmer v. Brennan that unless some prison official actually knew of and disregarded a substantial risk of serious harm to prisoners, prison conditions are not “punishment” within the meaning of the Eighth Amendment. Farmer’s reasoning, however, does not withstand scrutiny . As this Article shows, all state-created prison conditions should be understood to constitute punishment for Eighth Amendment purposes. With this in mind, this Article first addresses the question of when prison conditions are cruel, by considering as a normative matter what the state is doing when it incarcerates convicted offenders as punishment and what obligations it thereby incurs toward its prisoners. This Article then turns to the question of constitutional implementation and considers what doctrinal standards would best capture this understanding of cruel conditions.
At the heart of the argument is the recognition that the state, when it puts people in prison, places them in potentially dangerous conditions while depriving them of the capacity to provide for their own care and protection. For this reason, the state has an affirmative obligation to protect prisoners from serious physical and psychological harm. This obligation, which amounts to an ongoing duty to provide for prisoners’ basic human needs, may be understood as the state’s carceral burden. This, at its core, is the problem with Farmer’s recklessness standard: It holds officers liable only for those risks they happen to notice — and thereby creates incentives for officers not to notice — despite the fact that when prison officials do not pay attention, prisoners may be exposed to the worst forms of suffering and abuse. As this Article shows, either a heightened negligence standard on which a lesser burden would attach to those claims alleging macro-level failures of care or a modified strict liability approach would be far more consistent with the possibility of meaningful Eighth Amendment enforcement. Unfortunately, by encouraging judges to deny the existence of cruel treatment in the prisons, the prevailing doctrinal regime instead makes the judiciary into yet another cruel institution vis-à-vis society’s prisoners.
Senator Durbin responds to Washington Post editorial opposing crack/powder parityThe Washington Post has printed this letter from US Senator Dick Durbin, which responds to the Post's editorial (discussed here) that criticized Durbin's proposed legislation to eliminate the sentencing disparity between crack and powder cocaine. Here are excerpts:
The editorial wrongly argued that crack is more addictive and associated with more violence than powder cocaine. It is that flawed logic that justified the original sentencing disparity.
Countless studies have shown that there's little difference in the physiological impact of crack and powder cocaine. The American Medical Association reports that "the physiological and psychoactive effects of cocaine are similar" regardless of whether the form is crack or powder.
Furthermore, the U.S. Sentencing Commission report you cited actually found that 10 percent of crack offenders were involved in violence -- not 25 percent, as the editorial asserted, using a different definition of "violence" -- while 6 percent of powder offenders were involved in violence. That 4-percentage-point difference hardly justifies a disparity in mandatory minimum sentences.
The editorial also failed to note that my bill would significantly increase penalties for violent and large-scale drug traffickers, refocusing limited federal resources on the worst offenders.
October 30, 2009
New US Sentencing Commission report on the history of federal child porn guidelines
The US Sentencing Commission today posted here an important new report on the hottest topic in federal sentencing right now. The new report is titled simply "The History of the Child Pornography Guidelines," and it runs over 50 pages. The report's concluding summary provides an effective overview of what this document says and does:
This report provides a history of the child pornography guidelines, which were initially promulgated in 1987 and substantively revised nine times in the following 22 years. The most recent guideline revision is pending before Congress and, absent congressional action, will become effective on November 1, 2009. Congress has demonstrated its continued interest in deterring and punishing child pornography offenses, prompting the Commission to respond to multiple public laws that created new child pornography offenses, increased criminal penalties, directly (and uniquely) amended the child pornography guidelines, and required the Commission to consider offender and offense characteristics for the child pornography guidelines.
Sentencing courts have also expressed comment on the perceived severity of the child pornography guidelines through increased below-guidelines variance and downward departure rates. Consistent with the Commission’s duties to review and revise the guidelines, and the Supreme Court’s direction, the Commission has established a review of the child pornography guidelines as a priority for the amendment cycle ending May 1, 2010. This report is the first step in the Commission’s work on this priority.
This looks like a must-read for any and everyone who has been following the craziness surrounding federal child porn sentencing over the last few years.
Some related recent federal child porn prosecution and sentencing posts:
- ABA Journal covers the controversies over federal child porn sentences
- Potent DOJ response to ABA Journal article about federal child porn sentencing
- Potent response to DOJ account of federal child porn sentencing
- Strong sentencing opinion noting disparities in federal child porn downloading cases
- Yet another notable written opinion in a federal child porn downloading case
Must-read posts for sentencing fans at The Volokh Conspiracy and other blogosphere goodies
The Volokh Conspiracy is on my list of daily blog-reads, in part because the folks there cover a lot of cutting edge criminal and political issues that go beyond my core sentencing focus. But today the Conspirators have these two must-read new posts for sentencing fans:
- How to Have Less Crime and Less Punishment: A Checklist
There is also a lot of good new stuff at Crime and Consequences and and CrimProf Blog and Grits for Breakfast and Sex Crimes for criminal justice fans planning to catch up on their blog readding this weekend.
Kentucky AG talking about appealing sex offender residency restriction ruling to SCOTUSI have long thought it's only a matter of time before the US Supreme Court is called upon to resolve various constitutional issues that arise in the enforcement of state residency restrictions on sex offenders. And, as detailed in this local article, which is headlined "AG To Ask US Supreme Court To Hear Sex Offender Law: Kentucky Supreme Court Says Part Of Law Unconstitutional," an ex post facto case from the Bluegrass State could be on its way to the Justices. Here are the basics:
Hundreds of sex offenders could be living next to schools and day care centers. Kentucky Attorney General Jack Conway said that could happen if a state law is not protected. Conway said he's going to file a request for the U.S. Supreme Court to hear the case.
It came after Kentucky's Supreme Court ruled the 2006 law limiting where sex offenders can live is unconstitutional for offenders whose cases pre-date that law....
In 2006, a new Kentucky law went into effect limiting all sex offender registrants ... from living within 1,000 feet of a school a day care center or a playground. The state's Supreme Court ruled it was unconstitutional to enforce that law with offenders who were registered before the law went into effect.
Conway has asked the Supreme Court to delay implementing that ruling until the U.S. Supreme Court decides whether or not to review the case. In a statement released Thursday, Conway said, "I have serious concerns about how the Kentucky Supreme Court's ruling will affect public safety. And in the interest of protecting Kentucky families, I will ask the U.S. Supreme Court to hear our case."
The ruling that the Kentucky AG is eager to appeal came in in Kentucky v. Baker, No. 2007-SC-000347-CI (Ky. Oct. 1, 2009), and it is available here.
"Can Our Shameful Prisons Be Reformed?"The title of this post is the headline of this new commentary by Professor David Cole in the newest issue of the New York Review of Books. The review discusses three new works on American penal policies: Race, Incarceration, and American Values by Glenn Loury; Let's Get Free: A Hip-Hop Theory of Justice by Paul Butler; and Releasing Prisoners, Redeeming Communities: Reentry, Race, and Politics by Anthony Thompson. Here is a snippet from the piece:
Three recent books by scholars who happen to be black men eloquently attest to these broader effects of the racial disparities in our criminal justice system. For Loury, "mass incarceration has now become a principal vehicle for the reproduction of racial hierarchy in our society." For George Washington University law professor Paul Butler, author of Let's Get Free: A Hip-Hop Theory of Justice, "the two million Americans in prison represent the most urgent challenge to democratic values since the civil rights era." And for New York University law professor Anthony Thompson, author of Releasing Prisoners, Redeeming Communities: Reentry, Race, and Politics, it is critical that we examine "the pervasive interplay of race, power, and politics that infuse and confuse our attitudes about crime."...
as citizens we all have a stake in the fairness and legitimacy of our criminal justice system for both moral and pragmatic reasons. The character of our nation is determined in significant part by how we treat the criminally accused. It is no accident that the Bill of Rights concentrates primarily on protecting the rights of those suspected of crime. These amendments were deemed necessary precisely because political majorities are likely to seek shortcuts on fairness when crime is alleged, even though fairness is fundamental to the integrity of the criminal justice system.
As a pragmatic matter, the legitimacy of the criminal justice system is essential because it encourages law-abiding behavior. If people believe in the basic legitimacy of a leader or regime or procedure, they are far more likely to abide by the rules. If, on the other hand, a system is seen as corrupt, unfair, or unjust, those subjected to it will be less inclined to respect it. A legal system that relegates the majority of our most disadvantaged populations to incarceration, and does next to nothing to help them avoid prison or to reintegrate into society upon release, invites disrespect — and crime.
Is anyone complaining about excessive federal spending on prisons?
One need only turn on talk radio to hear lots of pundits complaining about excessive federal spending on items ranging from the arts to clunkers to health care. But this local article, headlined "Carney gets $1B more for federal prisons," leaves me wondering if there is anyone complaining about excessive federal spending on prisons. Here are excerpts from this local piece:
[F]unding-related problems are being seen at federal correctional institutions throughout Central Pennsylvania and across the country.
The issue hits hard in Central and Northeastern Pennsylvania, home to 20 percent of the nation’s federal correctional institutions, said U.S. Rep. Chris Carney, who has successfully petitioned the House Appropriations Committee for more than $1 billion in extra federal corrections funds in the previous and current fiscal years.
Over the past 20 years, the federal prison population has increased at twice the rate of staff levels, Carney said in a letter to key legislators seeking an increase in funding. At the end of 2008, federal prisons were operating at 138 percent their official capacities, Carney said.
Recent numbers show the U.S. Penitentiary at Lewisburg has 1,112 inmates at its main facility, and 520 at its camp. The official inmate capacity for the main penitentiary is 770 and 552 at the camp. Only 88 percent of Lewisburg’s correctional positions are filled — 260 out of a possible 295. “There may be 88 percent staffing at the facility, but the inmate population is 20 percent over capacity,” said Bill Gillette, northeast regional vice president for the council of prison locals for the American Federation of Government Employees. “They are down a lot.”
Of course, I want to see all federal prisons adequately staffed and funded. But it is the huge increase in federal prison populations that are creating these modern funding problems, and I think efforts to cut prison populations should come before any automatic decision to increase federal spending on prisons.
On this front, it would be useful if the U.S. Sentencing Commission would focus on the costs in tax dollars of the modern federal criminal justice system. Many state sentencing commissions do cost estimates with any proposed sentencing change, and the USSC should be well-positioned to examine whether we are getting value for our tax dollar from our federal sentencing system.
October 29, 2009
Effective new opinion discussing restitution in federal child porn possession casesI posted hereearlier this week an effective newspaper report on efforts by some persons who were victimized in "popular" child porn to obtain restitution from defendants being sentenced for possessing this child porn. Coincidentally, on Monday, Maine US District Judge George Singal issued a long and thoughtful opinion on this topic in US v. Berk, No. 08-CR-212-P-S (D. Maine Oct. 26, 2009) (available for download below). Here are some notable excerpts from the opinion (with some cites omitted):
It has long been uncontroversial to order restitution when the defendant is convicted of the actual physical abuse of a child or of producing images constituting child pornography. But victims and the Government have only recently begun seeking restitution from the end-users or possessors of child pornography. Indeed, counsel for “Amy” represents that the first restitution order against a defendant convicted only of possession of child pornography was entered in June of this year. (Amy’s Restitution Br. at 78.)
A review of the cases decided thus far shows that victims’ success in obtaining restitution has varied significantly in district courts across the country.6 At one extreme, courts have awarded the entire amount requested by the victims without any discussion as to proximate causation. See, e.g., United States v. Staples, No. 09-14017-CR, 2009 WL 2827204, at *4 (S.D. Fla. Sept. 2, 2009). At the other extreme, some courts have declined to order any restitution based on the lack of evidence showing a quantifiable loss proximately caused by the offense of conviction. See, e.g., United States v. Simon, 2009 WL 2424673, at *7 (N.D. Cal. Aug. 7, 2009). Some courts appear to have adopted a set amount for each defendant convicted of possession of child pornography. For example, the Central District of California seems to routinely order restitution of $5000 while the Eastern District of California routinely orders restitution of $3000. See United States v. Brown, No. 2:08-cr-1435-RGK-1 (C.D. Cal. filed Oct. 5, 2009) (awarding $5,000); United States v. Ferenci, No. 1:08-cr-0414 AWI, 2009 WL 2579102, at *6 (E.D. Cal. Aug. 19, 2009). Additionally, in some cases, the Government and the defendant have stipulated to a restitution amount. See United States v. Granato, No. 2:08-cr-198 (D. Nev. filed Aug. 28, 2009)....
It is undisputed that everyone involved with child pornography — from the abusers and producers of the images to the end-user/possessors such as the Defendant in this case — contributes to the victims’ ongoing harm. The difficulty lies in determining what portion of the Victims’ loss, if any, was proximately caused by the specific acts of this particular Defendant.
Having reviewed all of the evidence, the Court finds that there is nothing in the record showing a specific loss that was proximately caused by this particular Defendant’s possession of the victims’ images. The losses described the by the Victims are generalized and caused by the idea of their images being publicly viewed rather than caused by this particular Defendant having viewed their images. In the documentation supporting the Victims’ restitution requests, there is no mention of the impact that learning of Mr. Berk’s offense had on either of the Victims. In fact, there is no mention of Mr. Berk at all....
Because the Government has failed to present sufficient evidence showing a particular loss proximately caused by the offense of conviction, the Court declines to enter a restitution order in this case.
Some related recent federal child porn prosecution and sentencing posts:
UPDATE: A helpful readers sent m a copy of a revised amended opinion in Berk, which can be downloaded below:
A California perspective on the juve LWOP issues before the Supreme CourtThanks to How Appealing, we can all read this interesting article by Lawrence Hurley in The Daily Journal of California, which is headlined "U.S. Supreme Court Considers Life Sentences For Juveniles." As these excerpts reveal, the piece provides a west-coast perspective in the issues that the Justices will be dealing with the in the Graham and Sullivan cases:
The future of four prison inmates in California could hang in the balance when the U.S. Supreme Court debates next month whether juveniles can be sentenced to life without parole for non-homicide offenses.
Four convicted felons in the state received such sentences. Life without parole for crimes not involving murder is not a common punishment for juveniles in California — not to mention the nation as a whole — but on Nov. 9 the Supreme Court will take up the issue when the justices hear arguments in two cases out of Florida....
The cases have attracted considerable attention from legal groups, with experts predicting it could be the start of a concerted attack on the entire concept of life without parole. Some liberal activists and scholars view life without parole in a similar light as the death penalty.
California is one of eight states that have sentenced juveniles to life without parole for certain non-capital crimes. The four males currently serving such sentences were convicted between 1993 and 2003, according to California Department of Corrections and Rehabilitation data that was made available to the Public Interest Law Center at Florida State University. They were aged 16 or 17 when they committed the crimes. The prison service's data does not detail the nature of their offenses, but they are all thought to be kidnapping-related, a Corrections Department spokesman said. The state will not release the names of the four inmates.
When murder offenses are included, there are 263 inmates in California prisons serving life without parole for offenses committed when they were juveniles. They make up a small number of the roughly 170,000 inmates in California's state prisons....
Law-and-order conservatives ... are worried that the cases could open the door to a wider challenge against all sentences of life without parole. As Kent S. Scheidegger, an attorney at the Criminal Justice Legal Foundation in Sacramento, noted, "the ink was barely dry on Roper" before lawyers started making the argument that life without parole for juveniles was also unconstitutional.
His main concern is that even a narrow Supreme Court decision to restrict life without parole for juveniles in certain circumstances could help civil rights groups in future cases. "We are more worried about a 'small step' effect," Scheidegger said.
Activists who have been leading an unsuccessful fight — at least so far — to reform California's sentencing laws are now hoping the Supreme Court will do the job for them. Legislation that would allow an individual sentenced to life without parole as a juvenile to seek re-sentencing after serving at least 10 years in prison has so far failed to pass the California Assembly.
Elizabeth Calvin, a Santa Monica-based senior advocate at Human Rights Watch, said it was gratifying that the Supreme Court had at least "recognized this is such a serious issue" by agreeing to hear the cases. The publicity generated by the Florida cases is also helpful to her group's cause, she said, because it's contributed to "a growing awareness that the U.S. is the only country that uses this sentence."
Some recent posts on juve LWOP and the Graham and Sullivan cases:
- SCOTUS grants cert in Sullivan, juve LWOP case
- The (unpreserved?) procedural issues in Graham juve LWOP case
- Analyzing the cert grants in both Graham and Sullivan
- Gearing up for the SCOTUS juve LWOP cases on the horizon
- New Heritage Foundation report defending juve LWOP sentences
- An early preview of Graham and Sullivan, the SCOTUS juve LWOP cases
- ABAJ coverage of SCOTUS cases on constitutionality of juve LWOP
- Should religious doctrines influence Eighth Amendment jurisprudence?
- "The Case Against Juvenile Life Without Parole: Good Policy and Good Law"
Must-read posts from Kleiman on having less crime and less punishment
I have been following with great interest a series of guest posts by Mark Kleiman at The Volokh Conspiracy, which are essentially excerpts from his important new book titled "When Brute Force Fails: How to Have Less Crime and Less Punishment." This introductory post included this summary of the book:
We have too much crime and vastly too many people behind bars. Is it possible to have less of both? Yes, if the criminal justice system can learn what everyone who has ever successfully raised a child or trained a puppy knows: the right amount of punishment is the minimum that gets the message across, and that minimum effective dose is smaller if rules are clearly communicated and if punishments follow violations swiftly and predictably.
There are now working examples of successful strategies based on these principles, but the political and journalistic debate about crime has yet to catch up to progress on the ground. Doing things we already know how to do, we could have half as much crime and half as many people in prison ten years from now as we have today.
Here are links to the posts by Kleiman so far over:
- How to Have Less Crime and Less Punishment
- Positive feedback and strategic enforcement
- Benefits and costs: crime, crime avoidance, crime control
- Crime and punishment, race and class
The comments from readers are almost as interesting as the posts themselves.
"On the Limits of Supremacy: Medical Marijuana and the States’ Overlooked Power to Legalize Federal Crime"The title of this post is the title of this timely new article by Professor Robert Mikos in the latest issue of the Vanderbilt Law Review. Here is the abstract:
Using the conflict over medical marijuana as a timely case study, this Article explores the overlooked and underappreciated power of states to legalize conduct Congress bans. Though Congress has banned marijuana outright, and though that ban has survived constitutional scrutiny, state laws legalizing medical use of marijuana not only survive careful preemption analysis, they constitute the de facto governing law in thirteen states. This Article argues that these state laws and most related regulations have not been and, more interestingly, cannot be preempted by Congress, given constraints imposed on Congress’s preemption power by the anti-commandeering rule, properly understood. The Article develops a new framework for analyzing the boundary between permissible preemption and prohibited commandeering — the state-of-nature benchmark. The state-of-nature benchmark eliminates much of the confusion that has clouded disputes over the legal status of state medical marijuana laws.
Just as importantly, the Article demonstrates why these state laws matter in a more practical sense. By legalizing medical use of marijuana under state law, states have removed the most significant barriers inhibiting the practice, including not only state legal sanctions but also the personal, moral, and social disapproval that once discouraged medicinal uses of the drug. As a result, medical use of marijuana has survived and indeed thrived in the shadow of the federal ban. The war over medical marijuana may be largely over, as commentators suggest, but contrary to conventional wisdom it is the states, and not the federal government, that have emerged the victors in this struggle. Although the Article focuses on medical marijuana, the framework developed herein could be applied to any issue pitting permissive state laws against harsh federal bans, including abortion, sports gambling, and firearms possession.
Washington Post editorial argues against completely eliminating crack/powder sentencing disparityIn this new editorial, which is headlined "The right sentence: As Congress weighs the cocaine sentencing disparity, it should remember crack's dangers," the Washington Post comes out against equalizing the sentences for crack and powder cocaine. Here is the heart of the Post's pitch:
The Justice Department has announced its support for reducing crack penalties to mirror exactly those for powder. A bill recently introduced by Sen. Richard J. Durbin (D-Ill.) would codify this 1-to-1 ratio into law. Supporters of such a move point to the racial disparities between arrests for crack and powder, and argue that anything less than parity would be viewed by African Americans as a decision to continue targeting black men for tougher sentences. They also note that studies have shown that the addictive nature of crack has been significantly exaggerated and that no other drug carries with it different penalties depending on how it is consumed.
But appearances alone cannot justify the move contemplated by the Justice Department and the Durbin bill. A 2007 report from the U.S. Sentencing Commission shows that smoking crack delivers a faster, more intense high than snorting powder and that this high is more short-lived, thus compelling most crack users to seek additional doses of the drug. The differences in addiction rates between crack and powder are not enormous, but they are real, and the study also notes that crack users often experience faster rates of physical deterioration than do those who consume powder. The report notes that roughly one-fourth of crack offenders are associated with violence, and that this rate exceeds that for powder cocaine offenders. As in the 1980s, predominantly African American communities continue to bear the brunt of the crime and addiction brought on by this awful drug.
These facts suggest that there should be some difference in the penalties for crack and powder cocaine, but how much? This is a difficult question to answer with precision, so perhaps the best solution would be to eliminate the mandatory minimums for both crack and powder and build into the sentencing guidelines tougher penalty ranges for crack that judges could apply on a case-by-case basis.
Like most efforts to assess a complex issue in a short space, this Post editorial is more confusing than compelling. For starters, the federal sentencing guidelines already have much tougher penalty ranges for crack that judges must apply on a case-by-case basis after Booker. Second, the fundamental problem with both crack and powder sentencing is an undue reliance on drug weights rather than offense role in setting sentencing ranges. Third, given the apparent "success" of the recent retroactive reduction in crack sentences, it is a shame that the Post relies more on tired old debates than new real-world developments in assessing this important issue.
October 29, 2009 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines | Permalink | Comments (6) | TrackBack
October 28, 2009
Supervised sex offenders required to attend education meeting on Halloween night
In recent years in lots of communities, sex offenders are formally required or highly encouraged to turn off their lights and/or otherwise avoid any involvement in Halloween activities. Now, as detailed in this local article from Alabama, it seems that many jurisdictions are now taking more proactive measure to keep sex offenders out of the community and out of sight on Halloween:
A new policy from state and federal probation offices is aimed first at helping educate and reintegrate sex offenders and secondly to safeguard the community, said U.S. Supervisory Probation Officer Jeff Purcell.
Felony sex offenders are required by the State of Alabama Probation and Parole Office and the U.S. Probation Office to report to an undisclosed location for a meeting from 5:30 to 9 p.m. Saturday, according to the Probation Office of the U.S. District Court, Northern District. This includes felony sex offenders under federal supervision in Madison, Morgan, Lawrence counties and Madison County offenders under state supervision.
“We thought it would be comforting for the community to know these folks are not at home on Halloween night and they don’t have to worry about kids going to their doors,” Purcell said.
The meeting includes an educational program for offenders, with discussions including updates on sex offender laws, the Adam Walsh Act and rehabilitation opportunities, as well as training for employment. “This operation is a proactive venture to provide education and training to sex offenders, improve accountability and behavior change, as well as safeguard the community in that these sex offenders will not be participating in Halloween activities,” Purcell said.
Previously, felony offenders were required only to turn off their lights, not answer the door or hand out candy on Halloween. “We would have to check up on them and make sure they were doing that,” Purcell said. “It’s difficult to get to all the houses.” The meeting is required only for supervised offenders. “We don’t have any authority over those who are not under supervision,” he said.
House hearing Thursday on "Racial Disparities in the Criminal Justice System"
As detailed in this official hearing page, the House of Representatives Judiciary Subcommittee on Crime, Terrorism, and Homeland Security will be holding a hearing on Thursday, October 29 to examine "Racial Disparities in the Criminal Justice System." Here are the scheduled witnesses:
- Steve Cohen, U.S. House of Representatives
- James Reams, President-Elect National District Attorneys Association
- Barry Krisberg, President National Council on Crime and Delinquency
- Mark Mauer, Executive Director The Sentencing Project
- Wayne McKenzie, Director Program on Prosecution and Racial Justice
I am hopeful (but not optimistic) that the links to the witnesses' testimony will eventually work on this official hearing page.
Interesting debate over "Guns as Smut" thanks to Columbia Law ReviewThe October 2009 issue of the Columbia Law Review has an interesting article by Darrell A.H. Miller, which is titled "Guns as Smut: Defending the Home-Bound Second Amendment." Here is a synopsis:
In District of Columbia v. Heller, the Supreme Court held that the Second Amendment guarantees a personal, individual right to keep and bear arms. But the Court left lower courts and legislatures adrift on the fundamental question of scope. While the Court stated in dicta that some regulation may survive constitutional scrutiny, it left the precise contours of the right, and even the method by which to determine those contours, for “future evaluation.” This Article offers a provocative proposal for tackling the issue of Second Amendment scope, one tucked in many dresser drawers across the nation: Treat the Second Amendment right to keep and bear arms for self-defense the same as the right to own and view adult obscenity under the First Amendment — a robust right in the home, subject to near-plenary restriction by elected government everywhere else.
In addition, the Sidebar feature or the CLR has this commentary about the article from Eugene Volokh. His response, which is titled simply "The First and Second Amendments," makes this key point:
The premise of the Court’s obscenity decisions is that obscenity lacks constitutional value without regard to the place in which it may be present, though it may not be suppressed via intrusions into the home. That premise does not extend to private gun ownership under Heller.
And naturally Guns as Smut’s unsound premise leads to unsound results. If guns were really like obscenity, the government would be free to ban the buying of guns and not just their public possession.
Professor Miller gets in a final word through this short Sidebar reply.
UPDATE: Folks can access the full draft of "Guns as Smut" at this SSRN link.
How should positive behavior in prison impact resentencings after Booker?This local article about an interesting sentencing hearing spotlights a number of challenging conceptual issues that surround federal resentencings in the post-Booker world. The piece caught my eye due to its headline, "Victim helps press for longer sentence for nurse in 'nude therapy' case," but these snippets spotlight the array of legal issues this case presents:
Linda Kaufman, a nurse convicted of defrauding and abusing the mentally ill residents of the Newton home she ran with her husband, Arlan, told a federal judge she has been a positive influence on fellow inmates during her four years in prison. But a former resident of the home said Kaufman still needs to be held accountable for what happened there.
Not because she "married a monster," said Nancy Jensen, but because Kaufman was a registered nurse. "She was to do no harm, and she was to advocate for the people that she was to help," Jensen said.
The statements came Tuesday in the courtroom of U.S. District Judge Monti Belot, who has been required by the 10th Circuit Court of Appeals to reconsider factors that could lengthen the seven-year prison sentence he originally imposed on Kaufman. After a two-hour hearing, Belot took the matter under advisement and said he'd make his ruling in a written memorandum. He didn't say when he'd issue it.
Linda Kaufman, 66, and Arlan Kaufman were convicted in November 2006 of enslaving the home's residents, forcing them to work naked and perform sex acts. Belot gave Arlan Kaufman a 30-year sentence and Linda Kaufman a seven-year sentence.
The appeals court said Belot should reconsider Linda Kaufman's sentence because she was alleged to have used a stun gun, which the government said was a dangerous weapon; because the offenses involved a large number of vulnerable victims; and because she obstructed justice by interfering with a federal audit and investigation of the home.
The government has recommended a sentence of at least 20 years. Kaufman's attorney, Steve Gradert, asked Belot to reimpose his original sentence. That sentence was below sentencing guidelines. Belot had shown her leniency, believing she was manipulated by her husband....
Jensen, in an emotional statement, said the Kaufmans "did horrible things to us in the name of mental health and in the name of taking care of clients." Linda Kaufman was a nurse who was responsible for taking care of people with mental illnesses, she said. "The harm that she did is not easily seen because it was emotional and affected our behavior and our belief systems," Jensen said. "She used our diagnosis to blame us and abuse us. So, therefore, Linda knew how to hide the harm she caused us and blamed us for."...
Linda Kaufman told Belot that during her confinement she had done a lot of volunteer and self-improvement activities. She had coexisted peacefully with other inmates, had no disciplinary reports, worked faithfully at her prison jobs and received high scores for her job performance and cooperation, she said. She also participated in continuing education and religious classes. She said she won a humanitarian award last year for her work with inmates and for her quilting.
Kaufman said if she had another chance, she "would do many things differently," but she was looking to the future. "I long to join, and re-join, my grandchildren as soon as possible," she said.
Important sentencing issues ranging from co-defendant influence and disparity to the impact of the victim's testimony to the significance of the defendant's status as a nurse are all richly presented in this notable case. But, as highlighted by the question in the title of this post, I am especially interested to hear views on whether readers think Linda Kaufman's positive behavior while incarcerated can (or should or must) be a significant consideration in her resentencing in light of Booker and the terms of 3553(a).
"No Accountability: Why are bad prosecutors so rarely punished?"The title of this post is the headline of this important column by Radley Balko at Reason. Here are just some of the potent parts of Balko's effective commentary:
As DNA exonerations continue to accumulate across the country, we're left with some tough questions about accountability for the public officials who put innocent people in prison. Certainly in some cases honest mistakes can be forgiven. But what about cases, like that of John Purvis, where a prosecutor illegally withholds evidence of a suspect's innocence? What about prosecutors who participated in multiple wrongful convctions? Is it fair to hold them accountable years or decades later? What of those who went on to become judges, and now preside over murder cases? ...
Something is wrong here. It may well be true that the prosecutors noted above represent a tiny minority of those who serve or have served in the position. But whatever the number of "bad apples," our criminal justice and political systems seem unconcerned about weeding them out. Instead, they're often rewarded and promoted, despite long records of incompetence and misconduct. In fact, in the sense that misconduct can help win convictions, such prosecutors are often rewarded because of it. The Innocence Project estimates that prosecutorial misconduct factored into about a fourth of the wrongful convictions handled by the organization. Yet in none of those cases did a prosecutor face any serious sanction.
Be it through state bar association actions, judicial investigations and discipline, or legislation creating some other means of oversight, bad and incompetent prosecutors need to be held to account. When a prosecutor perpetrates misconduct or demonstrates incompetence that sends an innocent person to jail, it's a regrettable but understandable product of the fact that that any large system is going to have bad actors. But when that prosecutor remains free to go on prosecuting other cases, with no repercussions, the very legitimacy of the criminal justice system is called into question.
Following up on Balko's points, I would be especially interested in reader opinions as to whether "bar association actions, judicial investigations and discipline, or legislation creating some other means of oversight" seems like the best way to try to start tackling this real problem.
My first instinct is to wonder if some kind of "citizens' review board of prosecutorial actions," akin to review boards that are sometimes created to review police actions, might be useful. Of course, grand juries are supposed to serve this role at the outset of criminal prosecutions, but their efficacy in discovering and dealing with bad and incompetent prosecutors is limited by a number of practical and institutional factors. A back-end review board, which is only tasked with discovering and dealing with bad and incompetent prosecutors could perhaps achieve a lot of good. But that's just my first thought and I'd like to hear a lot more from others.
California moving on various fronts toward possible legalization of marijuanaThis New York Times article, headlined "Push to Legalize Marijuana Gains Ground in California," reports on the latest counter-insurgency in the war on drugs. Here are some details from the start of the article:
These are heady times for advocates of legalized marijuana in California — and only in small part because of the newly relaxed approach of the federal government toward medical marijuana.
State lawmakers are holding a hearing on Wednesday on the effects of a bill that would legalize, tax and regulate the drug — in what would be the first such law in the United States. Tax officials estimate the legislation could bring the struggling state about $1.4 billion a year, and though the bill’s fate in the Legislature is uncertain, Gov. Arnold Schwarzenegger, a Republican, has indicated he would be open to a “robust debate” on the issue.
California voters are also taking up legalization. Three separate initiatives are being circulated for signatures to appear on the ballot next year, all of which would permit adults to possess marijuana for personal use and allow local governments to tax it. Even opponents of legalization suggest that an initiative is likely to qualify for a statewide vote.
“All of us in the movement have had the feeling that we’ve been running into the wind for years,” said James P. Gray, a retired judge in Orange County who has been outspoken in support of legalization. “Now we sense we are running with the wind.”
Some recent related posts:
- "Attorney General Announces Formal Medical Marijuana Guidelines"
- "U.S. Support for Legalizing Marijuana Reaches New High"
- A potent pitch for decriminalizing marijuana
- "Medical Marijuana Muddle"
- Republican governor signals openness to legalizing marijuana
- "Marijuana Nation: The New War Over Weed"
- More calls for an end to the drug war and legalization of marijuana
- New poll has majority saying alcohol is more dangerous than marijuana
"Contingent Constitutionalism: State and Local Criminal Laws and the Applicability of Federal Constitutional Rights"The title of this post is the title of this piece available via SSRN from Wayne Logan. The paper seems especially timely in light of the Supreme Court's upcoming consideration of Second Amendment incorporation (not to mention the feds recent decision to "localize" its approach medical marijuana enforcement). Here is the abstract:
Americans have long been bound by a shared sense of constitutional commonality, and the Supreme Court has repeatedly condemned the notion that federal constitutional rights should be allowed to depend on distinct state and local legal norms. In reality, however, federal rights do indeed vary, and they do so as a result of their contingent relationship to the diversity of state and local laws on which they rely. Focusing on criminal procedure rights in particular, this Article examines the benefits and detriments of constitutional contingency, and casts in new light many enduring understandings of American constitutionalism, including the effects of incorporation doctrine and the nation’s mythic sense of shared constitutional commitment.