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January 31, 2009

Louisiana Governor proposes taking sex offender mania to new heights

It is both noteworthy and worrisome that Louisiana Governor Bobby Jindal, who is viewed by everyone as a rising star in the Republican party, has decided to propose legislation that would take the manic panic about sex offenders to new heights.  This local story provides the basic details:

If a day care owner knowingly allows a registered sex offender to come onto the facility's property, that owner could be charged with a crime and face prison time, according to a proposed law by Gov. Bobby Jindal.

The proposal was among several pieces of suggested sex crime legislation Jindal announced Thursday at the Caddo Parish Correctional Center. "This will resonate with the people here," Jindal said. His words came about a month after a local day care owner's son, a registered sex offender, was arrested after being accused of sex crimes with children at the facility.

Rodney Chism, son of Katherine Robbins, owner of the Smart Start Learning Center Express in Caddo Parish, was arrested in December on two counts of juvenile molestation. Robbins, who allegedly knew her son was a sex offender, could only be charged with perjury because there are no existing laws criminalizing such scenarios. The day care center was closed after authorities with the state Department of Social Services said Robbins had not performed adequate background checks on her employees.

Other proposals listed by the governor would strengthen many existing sex offender laws, such as making some of the most violent sex offenders submit to psychiatric evaluation after their prison and parole terms end. If a psychiatric evaluator determined the offender was likely to commit a crime again, the change would mean a district attorney could request indefinite, forced evaluation of that person until he or she was deemed to be no longer a threat.

This story provides yet another example of the one-way ratchet of criminal laws and the potential harm of legislative reactions to one awful crime.  Unless very carefully crafted and limited, a law making it a felony for a day care owner to even allow any registered sex offender to come onto the facility's property could (and likely would) have a lot of unforeseen consequences for both day care operators and families.  Especially since residency restrictions, and GPS tracking, and laws criminalizing a failure to register as a sex offender have had a variety of unexpected and negative consequences, I hope Bobby Jindal and his team have really thought through all the potential ramifications of what he is proposing here.

January 31, 2009 in Sex Offender Sentencing | Permalink | Comments (24) | TrackBack

What could be the impact of another Democratic president having a brother problem?

President Jimmy Carter had problems with Billy Carter.  President Bill Clinton had problems with Roger Clinton.  And now, as detailed in this CNN article, it appears that President Barack Obama may have problems with George Obama:

George Obama, the half brother of U.S. President Barack Obama, has been arrested by Kenyan police on a charge of possession of marijuana, police said Saturday.  Inspector Augustine Mutembei, the officer in charge, said Obama was arrested on charges of possession of cannabis, known in Kenya as Bhang, and resisting arrest. He is scheduled to appear in court Monday, Mutembei said....

CNN Correspondent David McKenzie talked with George Obama at the jail where he is being held. Speaking from behind bars, Obama denied the allegations. "They took me from my home," he said, "I don't know why they are charging me."

George Obama and the president barely know each other, though they have met before.  George Obama was one of the president's few close relatives who did not go to the inauguration in Washington last week. In his memoir, "Dreams from My Father," Barack Obama describes meeting George as a "painful affair."

For a variety of reasons, the arrest of George Obama in Kenya on drug charges is more likely to be a media-driven distraction than the basis for serious discussion of drug crimes and international law.  However, I cannot help but speculate and fear that this news could somehow influence whether and how the Obama Administration moves forward anytime soon on drug policy reforms or other hot-button criminal justice issues.

January 31, 2009 in Drug Offense Sentencing | Permalink | Comments (5) | TrackBack

January 30, 2009

Off-line while participating in Stanford Law Review symposium about media

Ironically, I may be off-line and unable to comment on media, justice and the law for a little while because I am participating the Stanford Law Review's symposium on "Media, Justice, and the Law."  The details of the event are here and here.  All of the papers written for the event are really interesting; I am looking forward to an exciting event and I think a webcast should be available here.

January 30, 2009 in On blogging | Permalink | Comments (4) | TrackBack

Another potent sentencing dissent from the Sixth Circuit's Judge Merritt

Sixth Circuit Judge Gil Merritt should be known as the great sentencing dissenter because he continues to speak forcefully in dissent about the long sentences being affirmed by his colleagues. Today's potent sentencing dissent comes in US v. Young, No. 07-5600 (6th Cir. Jan. 30, 2009) (available here), and it includes a notable prediction about future SCOTUS consideration of acquitted conduct enhancements:

The two first offenders here grew and distributed marijuana off and on over several years and were sentenced to 17 years and 19 years respectively.  In my view this sentence is too long and serves no rational penal purpose.  It is much greater than necessary to adequately deter marijuana growing and distribution.  I would reverse and remand for a further explanation of why such a long sentence is justified, especially in light of the great disparity in sentencing for such relatively minor marijuana crimes between the state and federal courts and among federal judges themselves. These defendants will be over 70 years old when they get out of jail, if they live that long.  The cost of their incarceration, including health care, will be enormous.  The sentences seem irrational to me — too irrational for me to defer.

For reasons stated in my dissenting opinion in United States v. White, No. 05- 6596 (6th Cir. Dec. 24, 2008 (en banc)), I do not agree with the holdings and reasonings of Sections II.D and II.E of the majority opinion upholding the use of acquitted conduct and the judge-found, offense-conduct facts regarding the leadership enhancement.  These sentencing enhancements are unconstitutional in my view.  Although I concur that we must defer to the majority opinion in United States v. White, it is not final for all purposes and is likely to be reversed by the Supreme Court.  These two enhancements are the basis for the long sentences and are inconsistent with the right of trial by jury under the Sixth Amendment, as I explained in White.  Counsel for the defendants should keep the cases open until we find out what happens to the White case in the Supreme Court.

As a critic of acquitted conduct enhancement (and as an amici in White), I sure hope Judge Merritt is looking into an accurate crystal ball when he makes the bold prediction that "White ... is likely to be reversed by the Supreme Court."  At this point, I will be excited if the Supreme Court even takes up White, since it has rejected cert petitions in a number of notable acquitted conduct cases in the past.

January 30, 2009 in Drug Offense Sentencing | Permalink | Comments (16) | TrackBack

Six-month federal sentence for Elliot Spitzer's "hooker booker"

Local news stories here and here report on the sentencing of a young woman involved in booking hook ups for the prostitution ring that former New York Governor Elliot Spitzer frequented.  Here are basic details from the NY Daily News:

The woman who ran Eliot Spitzer's favorite call-girl ring got six months in prison Thursday from a judge who cited her mentor's tight control over her.  Manhattan Federal Judge Barbara Jones rejected prosecutors' recommendation of a 21-to-27 month sentence for Cecil (Katie) Suwal, citing the Svengali-like power Emperors Club VIP boss Mark Brener once had over the 24-year-old.

A regular reader sent me this reaction to the sentence via e-mail:

This call girl was prosecuted in a federal case, if you can believe it.... The ignobility of it all...that Eliot Spitzer should escape prosecution, but this woman didn't...it boggles the female mind.

January 30, 2009 in Celebrity sentencings | Permalink | Comments (7) | TrackBack

"Our Existential Death Penalty: Judges, Jurors, and Terror Management"

The title of this post is the title of this new article appealing in the journal titled Law & Psychology Review and available via SSRN.  Here is the abstract:

Cultural anthropologist Ernest Becker explored the impacts of the subconscious fear of death upon humans.  In recent years, experimental psychologists have conducted studies related to Becker's theories.  This "terror management theory" research has found that human beings become more punitive and hostile toward other groups when they are reminded of their own mortality.  For example, in one study of municipal judges, the judges who were reminded of death set an average bond of $455 in a fictional case, while judges in the control group who were not reminded of their mortality set an average bond of $50 for the same case.  This study, and others like it, provides significant lessons for the legal system, especially in cases involving death.

This Article begins with a brief introduction into the existential theories about the fear of death discussed by Ernest Becker and others, and then it provides an overview of the recent empirical terror management theory research.  The following sections give a brief overview of the capital punishment system and discuss how the terror management studies explain several inherent problems with the capital punishment system.  These theories and experiments provide an important understanding of the subconscious influences upon jurors and upon other participants in the legal system such as judges, attorneys, and defendants.  For example, terror management theory helps explain why death-qualified jurors are more punitive.  The article concludes by explaining how attorneys and judges should work to lessen the death denial influences in capital cases because these existential influences contribute to the arbitrariness of the application of the death penalty. In addition to providing advice for capital defense attorneys, prosecutors and judges, the article proposes areas of further study for experimental existential psychologists.  The conclusion appeals for more education in the legal community and for further interdisciplinary study in the scientific community.

January 30, 2009 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Should we consider military service as an alternative to incarceration?

The Fall 2008 issue of the Justice Policy Journal includes this interesting article titled simply "Alternatives to Incarceration."  However, as this abstract reveals, the piece is focused on one particularly interesting alternative:

While previous research has sought to evaluate prisoners’ perceptions of various alternatives to imprisonment, most have centered on the prisoners perspective as to the perceived severity of the alternative punishment.  This research is quite different, as the proposed alternative does not seek to punish but rather to rehabilitate.  The proposed alternative argues that military enlistment be utilized as an alternative to incarceration we intend to determine if prisoners would welcome such an alternative.  Researchers have identified a correlation between military service and desistance from crime among youths, many of whom have had delinquent pasts.  This current project is intended to expand upon the life course perspective as the military can act as a “rehabilitative agent” which will act as a hook for change, thereby facilitating desistance from criminal behavior.

In the current study, we argue that military service can facilitate social bonds, promote prosocial network contacts, and teach skills necessary for successful integration into the dominant society.  Because of the benefits military service offers, it is hypothesized that prisoners will be receptive to such an alternative to incarceration.  Through our interviews with prisoners at a minimum security facility in Kentucky, we discovered that indeed prisoners overwhelmingly would welcome such an alternative.

UPDATE:  A terrific former student sent me this e-mail noting that there is historical precedent for military service as an alternative punishment:

One of the ways of avoiding a sentence of death during the middle ages was to accept a pardon from the King for service in the army for a year.  “The terms were readily accepted, and the King increased his force by a number of men who would perhaps be inferior to none in courage, though they might not improve the discipline of the army.”  Stanley Grupp, Some Historical Aspects of the Pardon in England, 7 Am. J.L. Hist. 51, 55 (1963).

January 30, 2009 in Criminal Sentences Alternatives | Permalink | Comments (5) | TrackBack

Lots of strong SORNA analysis...

in a series of strong posts at Sex Crimes:

January 30, 2009 in Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

A call for more sentencing rationality in Florida

A helpful reader pointed me to this interesting artice from the latest Florida Bar Journal, titled "Unhandcuffing Justice: Proposals to Return Rationality to Criminal Sentencing."  Though the piece brings the most sunshine to sentencing laws and practices in the Sunshine State, it covers topics arising in every jurisdiction.  Here are snippets:

Americans love to be number one.  Unfortunately, we are now tops in two negative areas: debt and prisons....

[O]ur nation imprisons more people per capita than any other nation. Florida is leading this trend with the fastest growth of any state. A recent Pew Report noted that Florida “will run out of prison capacity by early 2009 and will need to add another 16,500 beds to keep pace.” With $65,000 per bed “as the best approximation for a typical medium security facility” and $19,308 per year for each Florida inmate, Florida must raise taxes, cut programs, or finance this $1.1 billion in initial capital costs plus an additional $314 million in annual recurring costs....

Our current approach to criminal justice sentencing is not only fiscally irresponsible — it is morally questionable.  This approach will result in a continuing, chronic economic crisis.

January 30, 2009 in Scope of Imprisonment | Permalink | Comments (3) | TrackBack

January 29, 2009

Historical evidence that it is NOT too early to start demanding clemencies from President Obama

Over at the Pardon Power, P.S. Ruckman has two amazing posts here and here detailing for all the Presidents "the number of days between inauguration or the assumption of office (via death or resignation) and their very first pardon as President of the United States."  The data show that President Obama is already on the verge of being behind the historical curve: roughly half of all Presidents granted their first pardons within their first two weeks in office

Of course, 100 days is a widely-used marker for the Presidential honeymoon, and the data show that all but eight Presidents granted clemency within the first 100 days.  Disappointingly, even as the federal criminal justice system has grown enormously over the last two decade, three presidents who have been among the slowest in using this power of mercy were President Clinton and both Presidents Bush.  So much for feeling others pain or 1000 points of light or compassionate conservatism from the recent residents on the Oval Office.

As I have suggested before and will say again and again, I will only be a true believer in "hope" and "change" if and when President Obama changes the ugly realities that now surround clemency by starting to use the power to remedy true federal criminal injustices as the Framers intended.

Some recent related posts:

January 29, 2009 in Clemency and Pardons | Permalink | Comments (8) | TrackBack

Better off dead?

The potential consequences of severe residency restrictions for sex offenders is highlighted by this news story out of Michigan, headlined "Man found dead in cold was turned away from shelters in past because he was sex offender."  Here are the basics:

A man found dead on the streets Monday had tried in recent weeks to gain admittance to at least one of two Heartside missions, but was denied a bed because he is a registered sex offender.

Officials say its possible Thomas Pauli might be alive today except for a state law prohibiting him from establishing a residence even for one night within 1,000 feet of a school, in this case, Catholic Central High, also located in the Heartside district.

[Mission directors] decried a system where there are no exceptions to the so-called Megan's Law, which sets boundaries and restrictions for those on the list. "We have to follow the law, but ethically, it feels like were responsible," said [Bill] Merchut.  Added [Bill] Shaffer, "These men and women are clearly 'The Scarlet Letter' folks of our day. And where do they go? I have no answer."

Pauli, 52, served 11 years in prison for a 1991 conviction in Grand Traverse County for second-degree criminal sexual conduct, state records show.  He was released in 2003 and was required to register as a sex offender.

This related commentary raises all the important questions in the wake of this tragedy:

So is this what it finally takes for us to hear the muffled cries of the homeless -- an ex-con dead in the snow because it's against the law for a sex offender to huddle up at either of two Grand Rapids missions?

Thomas Pauli didn't choose to die alone in the cold.  He apparently froze to death because of a crime he committed nearly 20 years ago, and a law that's dogged him ever since his release from prison.

January 29, 2009 in Sex Offender Sentencing | Permalink | Comments (15) | TrackBack

Execution news and notes from Japan and Texas

This morning brings executions news from both the national and international new desks.

From the AP, "Texas executes former security guard for killing four":

Texas executed a former Houston security guard Wednesday for gunning down four people, including his ex-girlfriend and her two small children, during an October 1996 shooting frenzy.  Virgil Martinez, 41, was condemned for killing 27-year-old Veronica Fuentes; her children, 5-year-old Joshua and 3-year-old Casandra; and an 18-year-old neighbor, John Gomez, in Alvin, just south of Houston.

Martinez was the fourth Texas inmate executed this year and the first of two on consecutive nights this week in the nation's most active death penalty state.

From CNN, "Japan executes four death-row inmates":

Japan executed four convicted killers on death row on Thursday, the government said, marking the first set of executions in the country since October 2008.

All four men were hanged, Japan's primary method of execution, the Justice Ministry said.  The ministry identified the inmates as: 58-year-old Tadashi Makino, convicted of murdering four women in separate home invasion robberies; 44-year-old Yukinari Kawamura and 39-year-old Tetsuya Sato, both convicted of killing two women and burning their bodies in steel barrels; and 32-year-old Shojiro Nishimoto, convicted of murdering four people in separate home invasion robberies....

Japan executed 15 inmates in 2008 and 95 inmates currently sit on Japan's death row.  Japan's rate of executions since August 2007 has been approximately one execution every two to three months.

January 29, 2009 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Dutch white-collar sentencing in accounting fraud show continental contrast

In China, corrupt executives can get the death penalty, and decades of prison time were handed out to CEOs convicted of fruad like Bernie Ebbers and Jeff Skilling.  But, as this Reuters story indicates, sentencing outcomes are much different on the continent:

The Amsterdam appeals court sentenced three former executives of Dutch supermarket group Ahold on Wednesday to suspended sentences and fines over an accountancy fraud revealed by the company in 2003. In the Netherlands' biggest ever corporate accountancy fraud, Ahold had revealed massive bookkeeping irregularities at its U.S. Foodservice business and other foreign subsidiaries, overstating profits by almost 1 billion euros ($1.3 billion).

Former Chief Executive Cees van der Hoeven was sentenced by an Amsterdam appeals court to pay a fine of 30,000 euros, while former Chief Financial Officer Michiel Meurs was given 240 hours of community labour, a fine of 100,000 euros and a six-month suspended sentence. Former management board member Jan Andreae was given a three-month suspended sentence and a fine of 50,000 euros.

As this AP account explains, the appeals court ruling here involved cutting the (slightly) more onerous sentence that had been handed out by the trial court.

January 29, 2009 in Sentencing around the world, White-collar sentencing | Permalink | Comments (4) | TrackBack

January 28, 2009

The state of cost problems in the states of prison nation

16866_SOTSCover Now available here via Stateline.org is an effective article about state struggles with prison costs appearing in the  "State of the States 2009" publication put together by the folks at The Pew Center on the States.  The piece is titled "Strapped states eye prison savings" and here are a few choice snippets:

Faced with a surging prison population and a state budget more than $1 billion in the red, Gov. Steve Beshear and Kentucky lawmakers last year took a dramatic step that they hoped would save $30 million over two years: granting early release to more than 1,800 inmates, including some felons convicted of murder, rape and other violent crimes.

Kentucky’s prisoner release plan, which touched off a political firestorm and prompted a court challenge from the state’s attorney general — like Beshear, a Democrat — is an example of the difficult criminal justice decisions some states could face this year.

From California to Connecticut, states are under mounting pressure to bring corrections spending in line with the reality of gaping budget shortfalls. Lawmakers in some states are slashing prisoner rehabilitation programs, releasing inmates early or packing them more tightly into crowded facilities to save money. Others are using technology, such as satellite tracking, to monitor sex offenders, drunken drivers and other criminals instead of keeping them behind bars. To avoid building new prisons, many states ship inmates to private facilities that often are thousands of miles away.

Other states are exploring long-term strategies aimed at preventing recidivism, a leading factor behind overcrowded prisons and jails — and rising costs.  At any given time, more than 2.3 million people are locked up in federal, state and local facilities in the United States, and more than half of those released from prison are back behind bars within three years, according to the federal Bureau of Justice Statistics....

Nationally, corrections trails only health care, education and transportation in consuming state dollars. Prison spending increased 127 percent from 1987 to 2007, and at least five states — Connecticut, Delaware, Michigan, Oregon and Vermont — now spend as much or more on corrections as they do on higher education, according to the National Association of State Budget Officers and the Public Safety Performance Project.

The statistics are alarming state lawmakers in all regions of the country and, increasingly, on both sides of the political aisle. Criminal justice reform — for years a controversial issue for legislators wary of being labeled “soft on crime” — is finding new proponents as public officials seek ways to save money.  But a single strategy to tackle incarceration costs has yet to emerge, and some critics say state policymakers are dragging their feet and avoiding comprehensive changes that have become necessary.

Regular readers know that I have been following this story for years and the cost of sentencing toughness are coming due.  Here are links to prior posts covering these issues in particular states:

January 28, 2009 in Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Seventh Circuit finds top-of-range guideline sentence procedurally(?) unreasonable

Tucked into the back of a long opinion from the Seventh Circuit yesterday is a little sentencing talk that shows that at least one circuit is not always going to rubber-stamp district court rulings when conducting reasonableness review.  The opinion in US v. Williams, No. 07-1573 (7th Cir. Jan. 27, 2009) (available here), rejects lots of arguments from lots of co-defendants, but "vacate[s] Clinton Williams’s sentence because the record does not demonstrate that the district court considered his mental disability as a mitigating factor."  Here are some snippets from the panel's sentencing discussion (with cites omitted):

Section 3553(a) directs a district court to consider the history and characteristics of the defendant among the factors it weighs in determining a reasonable sentence.  We have held that while a "district court may pass over in silence frivolous arguments for leniency,” where a defendant presents an argument that is “not so weak as not to merit discussion,” a court is required to explain its reason for rejecting that argument....

There are two problems with the district court’s analysis.... [First,] the court’s observation that Clinton Williams was exaggerating his mental and intellectual disabilities is not dispositive of whether he was mentally disabled or whether his actual disability justified a lower sentence....

Second, the district court did not take into account the combination of Clinton Williams’s diminished capacity along with the fact that the ringleader was his brother, and the exacerbating effect that might have on his ability to think for himself.  We remand Williams’s case and on remand, the district court should consider his actual disability and the combination of his disability with his susceptibility to manipulation by his brother Brad.

Though styled as a conclusion that the district court erred procedurally by failing to explain how it considered the defendants arguments for a lower sentence, the panel decision here feel more like a reversal based on substantive unreasonableness.  Thanks to applicable mandatory minimums, the defendant faced a guideline range of roughly 43 to 46 years(!) in prison, and the sentencing judge impose a top-of-the-range sentence of 46 years. In its discussion, the panel notes at length the extent of Clinton Williams's disability history and indirectly suggests that 46 years seems extreme under the circumstances. 

Though we have had four years of reasonableness review since Booker was handed down, there still has been just a single sentence reversed as substantively unreasonable.  This Williams rulings gets close, but does not quite make number two.  Still, it is nice to see a circuit enforcing seriously the duty of explanation that should be inherent in reasonableness review.

January 28, 2009 in Booker in the Circuits, Offender Characteristics | Permalink | Comments (5) | TrackBack

Eric Holder on track to be next U.S. Attorney General

This AP story provides the latest news on the path toward a new U.S. Attorney General:

Senate Republicans, who acted like lions in challenging Eric Holder, turned into lambs Wednesday as they joined Democrats in recommending President Barack Obama's choice for attorney general.

The Judiciary Committee voted 17-2 to endorse Holder, with two Republicans opposing the nomination — John Cornyn of Texas and Tom Coburn of Oklahoma.  The Senate could vote as early as Thursday to confirm Holder as the first African-American to lead the Justice Department.

Some posts on the Holder pick for Attorney General:

January 28, 2009 in Criminal justice in the Obama Administration | Permalink | Comments (0) | TrackBack

Two intriguing sentencing stories show the impact of cable TV on federal justice

Two new local stories about two very different federal prosecutions have one notable link: cable TV shows seemed to have had an the operation of the federal criminal justice system in both cases.

First, consider this Tennessee story, headlined "Moonshine maestro gets 18 months."  Here are some of the cable-influenced details:

A federal judge sentenced Marvin “Popcorn” Sutton to 18 months in prison on moonshining and weapons charges Monday, rejecting arguments that Sutton deserved a sentence of probation because he had reformed and was too ill to serve prison time....

Sutton has a broad circle of supporters, and nearly 1,500 people signing petitions of leniency on his behalf.  He gained fame through a book he wrote called “Me and My Likker,” as well as through Internet videos and cable TV documentaries in which he demonstrated how to make moonshine.

That notoriety may have harmed him in the sentencing hearing. Assistant U.S. Attorney Robert Reeves introduced several of the videos as evidence Monday, claiming they showed Sutton “flaunted criminal activity.”  The judge appeared to agree. “Your moonshining is a violation of the law,” [the judge] told Sutton. “I don't care how it is glamorized on the History Channel or the Discovery Channel.”

Second, consider this Connecticut story, headlined " Child porn purveyor fights prison sentence."  Here are some of the cable-influenced details:

A man who was sentenced to more than three years in federal prison for possessing child pornography after a state judge gave him probation for possessing the same material is fighting the federal sentence — unsuccessfully so far....  [Defendant Edward] Burke pleaded guilty in October 2007 to a federal charge of possessing child pornography, which would have been extremely difficult for his lawyers to defend against at trial because he had pleaded guilty to the same conduct in Hartford Superior Court.

The federal prosecution began after the Journal Inquirerreported on Burke’s sentence of probation at the state level, imposed in October 2006 by Judge Thomas P. Miano in Hartford Superior Court. Miano put Burke on probation for five years, with 10 years of potential prison time hanging over his head if he violated court-ordered conditions.  The hundreds of images of child pornography found on Burke’s computer included sexual abuse of toddlers and the bondage and rape of prepubescent girls, authorities have said.

Heather Nann Collins, then a JIreporter, appeared on Cable News Network’s Nancy Grace show to discuss the case.  During the show, Grace said, as if speaking to Miano, “You are in contempt.”  Burke’s lawyers argued in court papers that the federal prosecution was “unduly influenced” by Grace’s attack on Miano.

January 28, 2009 in Booker in district courts | Permalink | Comments (2) | TrackBack

Can we effectively test capital deterrence in Maryland and Virginia now?

Whether the death penalty deters murders is an important and always controversial topic.  I tend to assume we will never know for sure and/or that the answer varies based on array of non-legal factors that cannot be effectively measured or modified.  That all said, the recent death penalty news in the vicinity of the nation's capital has me wondering if a terrific capital deterrence case-study is being created.

Specifically, consider this Washington Post report on recent capital debate headlined, "Maryland & Virginia Go Separate Ways On Death Penalty":

In both states, moves are afoot to make big changes in death penalty law. As the states' stereotypes would have it, Virginia is considering expanding use of capital punishment, while Gov. Martin O'Malley is stepping out to press Maryland to end its use of the ultimate sentence.

The Virginia efforts are an annual affair, a move, mainly by Republicans, to widen use of the death penalty to cover accomplices in murder cases. The state's current "triggerman" law limits executions to those who actually commit the deed, rather than those who may have conspired with or helped the killer....

Across the Potomac ... O'Malley has moved sharply away from his earlier reticence about translating his personal opposition to the death penalty into state policy.

So, in the same region, we have one state making news by talking about expanding the death penalty and another state making news about eliminating the death penalty.  (Squeezed in between is DC, which does not have the death penalty, though its entirely urban landscape keeps it from being an effective comparison to the somewhat more comparable states of Maryland and Virginia.)

Someone who does serious social science research likely would tell me that a host of factors may (or many not) prevent Maryland and Virginia from being good modern subjects for analysis of the classic capital deterrence question.  But, until I hear otherwise, I do think I am going to be keeping an extra eye focused on the homicide rates in these two jurisdictions.

January 28, 2009 in Death Penalty Reforms | Permalink | Comments (4) | TrackBack

January 27, 2009

Strong sentencing opinion noting disparities in federal child porn downloading cases

Regular readers know I have blogged a lot about the disparity I keep seeing in the ways in which child porn downloading cases are being prosecuted and sentenced in federal courts.  And, thanks to a helpful readers, I just learned about an sentencing opinion issued last month in US v. Stern, No. 5:07-CR-00524 (N.D. Ohio Dec. 17, 2008) (available for download below), that notes this reality while quoting some of my blogging on this topic.  Stern is a terrific opinion for lots of reasons, but you can understand my special affinity for these passages toward the end of the opinion:

The Court has carefully considered an extremely wide variety of opinions from across the country as well as the National Guideline Statistics.  The Court is deeply troubled by its findings: “anyone seriously concerned about federal sentencing disparities [must begin by] taking a very close look at federal child porn cases.” Professor Douglas A. Berman, Is There an Ivy-Leaguer Exception to Federal Child Porn Charges?(October 22, 2008), on-line at http:// sentencing.typepad.com.  Based on the Court’s review of the case law, it is clear that “one would be hard pressed to find a consistent set of principles to explain exactly why some federal child porn defendants face decades in federal prison, some face many years in federal prison, while others only end up facing months.” Id.  This Court is “struck by the inconsistency in the way apparently similar cases are charged and sentenced.” Goldberg, 2008 U.S. Dist. LEXIS 35723, at *5-6 (considering nearly two-dozen cases).

In short, the national sentencing landscape presents a picture of injustice. In the absence of coherent and defensible Guidelines, district courts are left without a meaningful baseline from which they can apply sentencing principles.  The resulting vacuum has created a sentencing procedure that sometimes can appear to reflect the policy views of a given court rather than the application of a coherent set of principles to an individual situation.  Individual criminal sentences are not the proper forum for an expansive dialogue about the principles of criminal justice.  Such conversation, though vital, should not take place here – lives are altered each and every time a district court issues a sentence: this is not a theoretical exercise. Yet, this Court is mindful of the appropriate scope of its authority – it must take the law as it finds it.

The Court, accordingly, has attempted to ensure that its sentence avoids unwarranted sentencing disparities to the greatest degree possible while still hewing to its view that this individual defendant must be punished with a term of imprisonment.

Download Stern child porn sentencing

Some related recent federal child porn prosecution and sentencing posts:

January 27, 2009 in Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Another former AIG executive gets serious prison time, but also a serious variance

This Rueters piece provides the basics on a notable white-collar sentence handed down today:

A former executive at American International Group Inc was sentenced to four years in prison on Tuesday for his role in a reinsurance deal that prosecutors said misled AIG investors. Christian Milton, a former AIG vice president of reinsurance, and four former executives at Berkshire Hathaway Inc's General Re Corp business were found guilty last February of conspiracy and fraud....

According to sentencing guidelines, Judge Christopher Droney of U.S. District Court in Hartford, Connecticut, could have sentenced Milton, of Wynnewood, Pennsylvania, to as much as 210 years in prison.

Ronald Ferguson, General Re's former chief executive, was sentenced to two years in prison last month in the same case.

Additional details about the case and the sentencing can be found from the AP and Bloomberg.  None of the media accounts effectively detail exactly how the guidelines and the 3553(a) factors were utilized, but I think I am on solid ground when I conclude that the defendant here got the benefit of a big-time variance.

January 27, 2009 in White-collar sentencing | Permalink | Comments (2) | TrackBack