December 19, 2009
Deep thoughts (and a great title) concerning drug and vice crimesThis article available via SSRN attracted my attention based just on its title, which is "Sex, Drugs, Rock & Roll and Moral Dirigisme: Toward a Reformation of Drug and Prostitution Regulations." And, as this part of the abstract highlights, there are some deep thoughts behind the cool title:
This Article builds upon various scholarly critics of moralistic laws to argue that legal prohibition of drugs and prostitution is inefficient. In so doing, it relies on economists’ scholarship, which has demonstrated that the high costs of regulation are not justified, considering the minimal success of these regulations as well as the harm caused by those regulations. Philosophers, for millennia, have grappled with formulating principles of morality and have attempted to determine which of those principles ought to be codified and imposed as societal rules of law on individuals. Attempts to coerce individuals into adopting certain behavioral patterns or forgo destructive ones have been referred to as “moral dirigisme”. Moral dirigisme manifests itself in “the attempt or tendency to control certain kinds of moral behavior by formal legal means."... The laws prohibiting drugs and prostitution serve as perfect examples of implementation of a moral dirigiste philosophy. I contend in this Article that the dirigiste approach to drugs and prostitution is erroneous and inefficient.
From Plato’s Socrates to Kant’s Categorical Imperatives to Hume’s observations, philosophers have confronted the nebulous intersection of absolutely necessary laws and purely beneficence-inducing laws, which cannot be implanted as a product of coercion. While the principles of justice have generally been perceived as capable of inspiring precise laws, other principles such as those guiding beneficence have been viewed by philosophers as more contingent on the individual’s state of mind or circumstances and less likely to be regulated by formal rules. This Article explores the proper role the law should play in regulating behaviors (such as drug use and/or in prostitution) that society deems harmful, but that are resistant to prohibition. Additionally, it considers items deemed harmful to the public, but not subject to any form of prohibition. Furthermore, it re-examines the consequences of U.S. drug and prostitution policy, focusing on the inevitable “black market” effects of the punitive style of enforcement, and initiates serious consideration of policy alternatives to discourage drug use and limit the number of vulnerable women engaging in prostitution.
Should autism provide a basis for a reduced federal sentence?The question in the title of this post is prompted by this news story about a prominent cyber criminal, which is headlined "Hacker claims form of autism, seeks lean sentence." Here are the details:
One of the world's most notorious hackers claims he may have a form of autism and has asked a judge to be lenient in sentencing him for helping mastermind the biggest identity theft in U.S. history.
The judge has delayed sentencing Albert Gonzalez in Boston federal district court for three months, to give prosecutors time to assess the hacker's claim that he may suffer from Asperger syndrome.
Gonzalez's attorney hired a psychiatrist who determined that the hacker's criminal behavior "was consistent with description of the Asperger's disorder" and "Internet addiction," according to court documents. Asperger syndrome is a mild form of autism. Sufferers' interests in specific subjects may border on the obsessive, according to the Autism Society.
Prosecutors assert that Gonzalez led a group of hackers who broke into computer systems and stole more than 170 million payment card numbers from data processor Heartland Payment Systems as well as retailers TJX Cos Inc BJ's Wholesale Club Inc and Barnes & Noble.
December 18, 2009
Thoughts on 2010 SCOTUS sentencing sleeper cases (or dicta)?
Today's topic for conversation as I head off-line for a while is whether 2010 will bring us some big time "sleeper" rulings from the Supreme Court on sentencing issues.
We can easily predict that the juve LWOP Eighth Amendment cases will be major rulings no matter what the Justices do and say. But what other cases should sentencing fans be watching extra closely as we turn the calender? Are there even some non-sentencing cases (like the honest services cases or the Second Amendment incorporation case) that might include some important sentencing-related dicta?
DPIC releases year-end report on the death penalty in 2009
As detailed in this press release, the Death Penalty Information Center has just released its latest end-of-year report on death penalty developments. Here is how the press release describes the highlights of this new report, which is titled “The Death Penalty in 2009: Year End Report” and is available at this link:
The country is expected to finish 2009 with the fewest death sentences since the U.S. Supreme Court reinstated the death penalty in 1976, according to a report released today by the Death Penalty Information Center. Eleven states considered abolishing the death penalty this year, a significant increase in legislative activity from previous years, as the high costs and lack of measurable benefits associated with this punishment troubled lawmakers.
Major papers reporting on this report include:
- From the New York Times here, "Death Sentences Dropped, but Executions Rose in ’09"
- From the Washington Post here, "Number of death sentences falls to a historic low"
December 17, 2009
North Carolina law that excluded sex offender from church declared unconstitutional
This local article reports on a notable new ruling declaring unconstitutional certain restriction placed on sex offenders in North Carolina. Here are the details:
A North Carolina law that limits sex offenders' ability to worship unconstitutional, a judge ruled Thursday. Two parts of a North Carolina general statute aimed at protecting children from child molesters are unconstitutionally vague and overly broad, Superior Court Judge Allen Baddour said Thursday. He said the statutes infringe on the constitutionally protected right to worship.
The decision comes after authorities arrested registered sex offender James Nichols in March for attending a Baptist church outside of Raleigh because the church provided on-premise childcare. Baddour dismissed the charges.
The statute says offenders must stay 300 feet away from any area intended for the use, care of or supervision of minors and any place where minors gather for regularly scheduled events.
Baddour said the laws "infringe upon protected rights ... to practice religion, which are fundamental rights protected by the First Amendment."
He added that it is impossible for a sex offender, law-enforcement officer or citizen to determine which areas fall under the category of a place where minors gather for regularly scheduled events. He ruled the law too vague to follow.
Baddour pointed to less drastic measures the state could take to protect children from offenders, including an exception already in the statute that allows offenders to be on school property for a specific purpose.
The full 16-page ruling in this significant case can be accessed at this link.
"Haley Barbour's Bizarre Pardon Record"The title of this post is the headline of this potent new piece by Radley Balko at Slate. Here is how the piece begins:
Mike Huckabee took a beating from his conservative brethren last month after Maurice Clemmons, a man whose sentence the former Arkansas governor commuted in 2000, shot and killed four police officers in Lakewood, Wash. The scuttlebutt on the right suggested that Clemmons' release may doom Huckabee's chances of winning the Republican nomination for president in 2012. I happen to think Huckabee's getting a raw deal on the Clemmons case; instead, we should be talking about the truly bizarre pardon record of one of Huckabee's possible competitors for the nomination, Haley Barbour. The governor of Mississippi has simultaneously ignored increasing evidence that there may be a disturbingly high number of innocent people in prison in Mississippi and handed out pardons to the convicted murderers who just happen to do work on his house.
Local thoughts about sentences for local politiciansThe Baltimore Sun and the New York Daily News today have these pieces about some of the sentencing dynamics surround the upcoming sentencing of local politicians who have recently been convicted of wrong-doing:
Notably, Baltimore Mayor Dixon was found guilty of a state offense, while former New York state Senator Bruno was convicted by the feds. Consequently, as these pieces note, much different legal structures and contexts will impact their fates.
"Going Robe: Obama's judicial appointment strategy isn't working; Here's a better one"The title of this post is the title of this piece by Prof. David Fontana at The New Republic. Here are excerpts:
Obama's federal appellate nominees have been generally moderate, safe choices. A majority of them have served as prosecutors (usually considered evidence that a judge might lean more to the right than liberals would want).... Yet besides Hamilton, only two of the twelve nominees ... have so far been confirmed....
The lesson here for Obama is simple: If Republicans are going to obstruct even moderate nominees, and if Senate Democrats are sometimes going to have to break filibusters to stop them, then why keep appointing generally moderate judges meant to appeal to Republicans? Why not try to put your own philosophical stamp on the courts?
The politics of placing liberals on the bench aren't nearly as daunting as the administration seems to think. Democrats have enough votes to break a filibuster, as they ultimately did for Hamilton -- and, unlike with health care reform, centrists like Joe Lieberman and Ben Nelson don't seem to be wavering on judicial nominations. Beyond the 60 senators in the Democratic caucus, there appear to be some Republicans who will vote to end a filibuster on principle, even if they won't vote for the nominee. (The Hamilton filibuster was broken by 70 senators, including some Republicans who did not subsequently vote to confirm.)
More importantly, outside the Senate, Obama would have public opinion on his side. Research conducted recently by Stephen Ansolabehere of MIT and Nathaniel Persily and Jamal Greene of Columbia Law School found that 58 percent of Americans thought it very or somewhat important for the Supreme Court to exhibit "empathy" in judging. A majority also supported interpreting the Constitution according to "current realities" rather than according to the "original intentions" of the Framers. These findings are largely consistent with a series of polls conducted by Quinnipiac University over the years.
The public, in other words, would be perfectly content to watch Obama put his stamp on the judiciary. If only he weren't so fixated on wooing Republican senators who seem determined not to be wooed.
As regular readers know, I think these issues are of particular importance for federal crime and justice jurisprudence. At least for balance, one might hope to see at least a few prominent lawyers from the defense bar get appointments to the circuits go along with all the former prosecutors now becoming Obama judges.
What are the biggest sentencing stories of the last year and decade?One cannot avoid "biggest" and "best" stories and lists this time of year, and this year we are also seeing discussion of the biggest and best of the decade as well as of 2009. Especially since I am going to be off-line much of today, I thought I would get into the spirit with this post encouraging readers to discuss the biggest sentencing stories of the year and of the decade.
December 16, 2009
Georgia Supreme Court halts final scheduled execution for 2009This new piece from the Atlanta Journal-Constitution, which is headlined "Georgia Supreme Court halts Carlton Gary's execution," reports that the last execution scheduled for 2009 was put on hold this afternoon:
The Georgia Supreme Court on Wednesday halted the execution of the so-called Columbus stocking strangler, ordering a judge to consider Carlton Gary's request for DNA testing. The 5-2 ruling came four hours before Gary was to be executed by lethal injection....
Prosecutors said Gary sexually assaulted and attacked four other women during an eight-month period in 1977 and 1978. The attacks terrified residents of the Wynnton neighborhood of Columbus. Fingerprint evidence placed Gary at the homes of three of the victims. Gary did not deny being at the scenes, but said an accomplice sexually assaulted and attacked the women. At the time of Gary's trial, DNA testing was unavailable....
On Wednesday, the Georgia Supreme Court found that the motion complied with the requirements of a 2003 state law that allows requests for DNA testing had DNA tests been unavailable at the time of trial. The court ordered Johnston to hold a hearing to consider the request. Chief Justice Carol Hunstein and Justice George Carley dissented.
As a result of this development, it appears that the final body count for executions in 2009 throughout the United States will be 52. As detailed in this DPIC chart, the 52 executions in 2009 marks a significant increase in the total number of executions from 2007 (42 executions) and 2008 (37 executions), but it still well below the average of roughly 70 executions per year for the decade from 1995 to 2005.
As detailed in this DPIC chart, Texas (with 24), Alabama (with 6) and Ohio (with 5) were the top three states in total executions in 2009. (I have to think it is just a coincidence that the college football teams for the state universities in Texas, Alabama and Ohio all won their respective conference championships. But maybe some enterprising number cruncher can see if there is a modern correlation between execution rates and college football success.)
Reduced prison sentence in Florida reveals that clemency is not completely deadEspecially in the wake of all the bad press that the concept of clemency has received after the horrible crimes of Maurice Clemens, I am pleased to see this notable new clemency story out of Florida. Here are the details:
Today, Jennifer Martin will be free. Martin was sentenced to 16 years behind bars after being convicted of manslaughter. She has already served eight years, but a four-person clemency board that includes Gov. Charlie Crist has agreed to cut her sentence in half.
In 1998, Martin was hanging out in Ybor City one night. She met two guys named Josh Nicola and Scott Schutt. According to the prosecutor, Paul Duval Johnson, both of the men had blood alcohol levels above the legal limit. Martin did not have any alcohol in her system. So she offered to give the two men a ride.
While driving on Interstate 4, she lost control of her car and crashed. According to Johnson, she was traveling at least 80 miles an hour in a 55-mile-an-hour construction zone. None of the people in the car were wearing seatbelts. The crash killed Nicola and severely injured Schutt. Martin suffered only minor injuries.
Johnson was able to prove to a jury that Martin had "a reckless disregard for life" that night. She was convicted of manslaughter. According to Johnson, sentencing guidelines dictated a sentence of 12-20 years. The judge gave her 16 years.
The sentencing did not sit well with Johnson. "It's just a case that from the very on-set, because of the facts, I felt deserved mercy," Johnson said.
The victim's family disagreed. They felt Martin deserved the 16-year sentence. They would not budge when Johnson pushed them to ask for a more lenient sentence. "I've prosecuted people for life terms and people serving much longer than Jennifer Martin's (sentence) and I'm OK with it," Johnson said. "Jennifer Martin's sentence, I lost sleep over."
The state's chief financial officer, Alex Sink, heard about Martin's situation and helped her case get put in front of the four-person clemency board that includes Sink and Gov. Crist.
Johnson and Martin's attorneys made her case in front of the board. On a unanimous vote, the board agreed to cut Martin's sentence in half. She would not have to serve the second half of her 16-year sentence.
I am especially pleased to hear about a case in which a prosecutor recognized, and actively worked to rectify, a sentence that he helped to secure but concluded was too long.
Some notable recent reasonableness rulings from the circuits
Though not seeming to break any significant new ground, two recent reasonableness review affirmances and two recent reasonableness review reversals seem worth noting this afternoon:
The First Circuit, in US v. Zapata, No. 08-1554 (1st Cir. Dec. 16, 2009) (available here), affirms a stat max sentence (of only 48 months) in a drug case against various challenges.
The Fourth Circuit, in US v. Myers, No. 08-4343 (4th Cir. Dec. 16, 2009) (available here), affirms a 30-year sentence in a drug case by approving an upward departure to sentence a defendant as a "de facto" career offender.
The Sixth Circuit, in US v. Novales, No. 07-3663 (6th Cir. Dec. 16, 2009) (available here), reverses a sentence in a drug case based on procedural unreasonableness because "the district court materially erred by failing to calculate the appropriate guideline range."
The Seventh Circuit, in US v. Kirkpatrick, No. 09-2382 (7th Cir. Dec. 14, 2009) (available here), reverses a way-above-guideline sentence in a gun case because the district judge failed to explain why or how he decided to select a sentence so far above the applicable guideline range.
The Kirkpatrick is probably the most significant ruling of this bunch, and a helpful reader has allowed me to reprint his account of the significance of the ruling:
The Seventh Circuit [has] reversed a big above-guidelines that neared the statutory maximum, essentially faulting the judge for failing to articulate why he could not have employed other guideline rationales to consider less extreme, "incremental" enhancements available through the Sentencing Commission's work. The judge in United States v. Kirkpatrick, No. 09-2382 (7th Cir. Dec. 14, 2009), imposed 108 months for being a felon-in-possession essentially because the defendant confessed to crimes he did not commit (and which federal investigators spent 200 hours investigating before concluding he was innocent). Judge Easterbrook thought the district court could easily justify varying above the 37-46 month guideline range, but the district court here did little to justify why he went to 108 months — a sentence the Commission would reserve for someone who had actually engaged in the wrongdoing Kirkpatrick only pretended to have done.
This opinion provides a useful model by which to challenge sentences that leap above the guideline range to approach the statutory maximum, and urges judges to consider lesser, guideline enhancements producing a shorter sentence.
Will (and should) Ohio's one-drug success impact Delaware lethal injection litigation?The question in the title of this post is prompted by this local news story out of Delaware, which is headlined "Appeals Court to hear suit on execution procedures." Here is how it gets started:
The class-action lawsuit that has been holding up executions in Delaware for more than three years will be headed to the U.S. 3rd Circuit Court of Appeals today. If the court upholds the April ruling by Delaware District Judge Sue L. Robinson and there is no appeal to the U.S. Supreme Court, executions could soon resume in the state.
However, attorneys from the Federal Community Defender's office in Philadelphia who are representing Delaware's 20 death row inmates and legal observers believe recent developments in Ohio could prompt the court to send the matter back to district court, keeping Delaware's death penalty in limbo.
At issue in the appeal are Delaware's method of execution — a three-drug mix that has been associated with problems in the past — the state's history of mistakes in past executions and a lack of a back-up plan if executioners can't find a vein in the condemned to deliver the lethal drugs.
Because Ohio this month successfully executed an inmate using a one-drug method, courts may decide this presents a "feasible and workable" alternative, said Richard Dieter, executive director of the Death Penalty Information Center.
But, he said, just because there is an alternative which supporters claim is more humane and causes fewer problems, does not mean the appeals court will order it to be used. There also has to be evidence that the existing execution system in Delaware has significant flaws. "Given the precedent of the district court, it is going to be an uphill battle [for the plaintiffs]," Dieter said.
This story reinforces my instinct that Ohio's early success with a one-drug lethal injection protocol likely could be a critical turning point in all the debate over lethal injection. It makes lots of sense that death-row defendants litigating in jurisdictions using the old three-drug protocol will want to spotlight (and even praise) Ohio's new one-drug method. And yet, as I have noted in some recent posts, any and everyone seriously opposed to all forms of capital punishment are put in a difficult position whenever any death row defendants and their attorneys laud Ohio's new execution protocol.Some recent related posts about Ohio's new execution method:
- Ohio adopting a new one-drug lethal injection protocol
- "Ohio inmate to get 1-drug, slower, execution"
- Reports on Ohio's success with one-drug lethal injection protocol
- A few early questions following Ohio's successful one-drug lethal injection execution
- New York Times (irresponsibly?) contends "There Is No ‘Humane’ Execution"
Notable and insightful Blakely habeas ruling from the Sixth CircuitThe Sixth Circuit has an effective little panel decision today in a habeas case concerning the application of Blakely to Ohio sentencing law. The ruling in Arias v. Hudson, No. 08-4513 (6th Cir. Dec. 16, 2009) (available here), has many notable aspects, and here is how the opinion starts and concludes:
The warden appeals an order conditionally granting habeas corpus to Manuel Arias on the ground that his sentence violates Blakely v. Washington, 542 U.S. 296 (2004). Arias’s sentence does not violate Blakely, however, because the judicial fact-finding at issue merely increased his minimum sentence. We accordingly reverse.
The continuing vitality of McMillan and Harris may be put to the test in a pending case at the Supreme Court. See United States v. O’Brien, ___ U.S. ____, 130 S. Ct. 49 (2009) (granting certiorari in a case involving fact-finding that increased a defendant’s minimum sentence). The case could be decided by overruling McMillan and Harris, but it also could be decided on statutory grounds, as the First Circuit decided the case below. See United States v. O’Brien, 542 F.3d 921, 924 (1st Cir. 2008). Regardless of what happens in O’Brien, however, this Sixth Amendment reality remains: At the time the judge imposed Arias’s sentence, the Supreme Court treated judicial fact-finding differently depending on whether it affected the minimum sentence faced by a defendant or the maximum sentence for which the defendant was eligible. Because the courts have not treated Blakely or United States v. Booker, 543 U.S. 220 (2005), as changes in law that should be applied retroactively to cases whose direct appeal concluded before their announcement, we see little prospect that the courts will apply any such (potential) change in the law retroactively to Arias. Cf., e.g., Duncan v. United States, 552 F.3d 442, 447 (6th Cir. 2009) (holding that Booker does not apply retroactively to cases pending at the time of Blakely).
In the last analysis: McMillan and Harris were good law at the time of Arias’s sentencing, and they remain so today; the two decisions allow judicial fact-finding that increases a defendant’s minimum sentence; Arias waived his right to have the jury make any findings of fact that might increase his maximum sentence; and an increase in the minimum term of this sentence is governed by Harris. All of this leaves Arias with no cognizable basis for challenging his sentence.
I am very pleased to see this panel opinion give voice to the possibility that the vitality of McMillan and Harris may be at issue int he upcoming O’Brien case. This ruling in Arias also provides a useful and important reminder that defendants whose case may turn in some way on the vitality of McMillan and Harris ought to be extra sure to be preserving (and prolonging?) this issue in their cases.
(On an somewhat unrelated front, the Sixth Circuit today also released this order in an immigration case which includes a dissent that has, among other flourishes, these two amusing footnotes: "Seriously, a Turkish prison" and "With a tip of the hat to M. Colbert of The Colbert Report".)
The now-quite-common dollars and sentencing debate taking place in ArizonaA down economy and tight state budgets has prompted nearly all states to confront the critical and valuable issue of how public safety can be maintained or improved at less cost. This local article from Arizona, which is headlined "House panel reviews cost of sentencing," reports on the terms of the debate that is now quite familiar to serious students of state criminal justice systems:
Arizona's state budget problems are prompting lawmakers to take a new look at how the state does business. On Tuesday, a House committee started work on a re-examination of crime and punishment in Arizona. The issue: Are there changes in state sentencing laws that would save money? How can the state protect citizens while still cinching its budget belt?
"The goal is to correct some of the problems in the criminal-justice system," said Rep. Cecil Ash, R-Mesa and the committee chairman. That would include rooting out spending inefficiencies as well as injustices, he said, after the committee concluded a nearly four-hour hearing.
Ash, a former public defender, said he hopes for recommendations that will lead to changes in the law. Saving money isn't the only goal, although it's likely if the committee comes up with alternatives to locking up criminals at an average cost of $30,000 a year. "If you're paying $30,000 a year for an inmate, one probation officer could take care of 30 to 40 prisoners," Ash said of a possible shift to more probation as an alternative to mandatory minimum prison terms.
Sentencing laws are just the beginning of the hunt for ways to save money. House Speaker Kirk Adams has formed three more study committees dealing with education finance, behavioral health and the federal stimulus act. Their work should start next month....
On Tuesday, the study committee on prison sentencing got a mixed bag of advice.
Public defenders, a former state appeals-court judge and the families of inmates pleaded for a rollback of Arizona's mandatory minimum-sentencing laws. They backed the idea of a sentencing commission that would take a fresh look at laws that date from the 1970s, with revisions made in the 1990s.
Prosecutors and crime-victim advocates advised caution, saying the current laws deter crime. "There is a persistent myth that Arizona's draconian sentences are imposed on first-time non-violent offenders," said Steve Twist, president of Arizona Voice for Crime Victims and a former state assistant attorney general.
But Shawnelee Cooper, whose husband is in prison on a substance-abuse-related charge, said he got ensnared in the mandatory sentencing laws. And there's a cost beyond the estimated $30,000 annual spending to house an inmate: She and her daughter, who has respiratory problems, are now on public assistance since the family lost its breadwinner. Cooper estimated it costs the state $2,000 a month to keep them on state-provided medical coverage.
AG Holder spotlights the important connection between family values and public safetyI was pleased to see some important family-value themes stressed in this new speech by Attorney General Eric Holder at the "Fatherhood Town Hall" in Atlanta. Here are some of the highlights for criminal justice fans:
More than 1.5 million American children have fathers in prison. More than half of these children are African American. And we know that children of incarcerated parents suffer from: the physical and emotional separation; the stigma associated with having a parent detained; the loss of financial support; and the disruption caused by introducing new caregivers into a child’s life, no matter how well meaning those caregivers may be. As a result, children of incarcerated parents often struggle with anxiety, depression, learning problems, and aggression, undermining their own chances of future success. We know that in many cases maintaining relationships with their parents during incarceration can improve the lives of children, and yet too often our policies have failed to support these relationships....
Research reveals that incarcerated men who maintain strong family ties while behind bars are more successful when they are released. They have an easier time finding jobs and staying off drugs. In fact, a recent study done for the Department of Health and Human Services found that people who were married or in committed relationships were half as likely to use drugs or commit new crimes after they were released from incarceration.
There’s a theme here: family connections improve public safety, and responsible and engaged parenting improve public safety. It’s time we started to think about this issue in that context....
This year, the Department of Justice awarded $28 million under the Second Chance Act for reentry programs. These programs include grants to 15 states that will help formerly incarcerated people successfully transition back into their communities. These grants include parenting training inside facilities and reunification programs for when people are released from incarceration.
I’m happy to note that in Tennessee, the city of Memphis has hired a family liaison who works with formerly incarcerated people to help them reconnect with family members when they return to town. In South Dakota, the Department of Corrections has launched a Fatherhood and Families Program to address the challenges faced by incarcerated fathers and to promote healthy relationships. And in Oregon, Marion County is deploying an evidence-based parenting curriculum called "Parenting Inside Out," and a family reunification curriculum called "Restoring Relationships." These are just three examples of how we’re shifting resources to support family reunification for formerly incarcerated people and their families....
In the meantime, we’re learning some important lessons. We’re seeing encouraging results from parenting programs in prison. Men who participate in these programs are more positive about their role as fathers, and they have more frequent contact with their children. Relationship intervention programs have also shown promise in improving communication between formerly incarcerated parents and their children.
But challenges remain. Successful family programs demand close coordination between criminal justice and human service agencies, and those groups aren’t always on the same page. Often the distance between the family’s home and the prison makes contact difficult. And prison rules do not always allow for the best visits. These are institutional problems, but they are not insurmountable problems. And given the stakes, they are worth our focus and energy.
UPDATE (after reading a few early critical comments): Because some commentors see this post as providing a basis for bashing our Attorney General rather than giving him credit for emphasizing family values, I now feel compelled to quote and stress parts of the speech linked above that precedes the parts previously quoted:
Those of us who are fathers have opportunities — big and small everyday — to take responsibility in the lives of our children. We can spend time with our sons and daughters, we can help with their homework, we can teach them to play well together, we can get to know their friends and classmates, and we can serve as role models for how to interact with others and how to handle the challenges of life. Stated simply, we can — and we must — assume the responsibility for being involved in our children’s lives. And by being involved, and by being good role models, we each have the opportunity to impact our kids’ lives, as well as the future of our nation, in profound ways.
If we are truly to call ourselves "men" we must recognize that a defining characteristic of that word is the care and nurturing of those we bring into this world. You simply cannot be a real man if you don’t do all that you can to care for those who have the greatest right to depend on you. We cannot leave this awesome responsibility to the women in our lives and in our communities who too often labor alone, taking care of our sons and daughters. This must end.
I know it is now common sport and a regular habit for folks with partisan views to start attacking the statements of prominent persons with the wrong R/D letter near their name no matter what those prominent persons may actually be saying. But, at least in this forum, I encourage those inclined to attack to find the time to click a link and become fully informed before starting predictable partisan pot-shots.
Planned prisoner transfer getting lots of attention...because it involves moving the terror suspects from Gitmo to Illinois. How Appealing collected links to much of the major news coverage in this post yesterday, and today a lot of the buzz is about political debates (and posturing) surrounding the decision. This item from the New York Times, which is headlined "From Guantánamo to Beyond ‘Supermax’," provides a prison perspective on this matter. Here are excerpts:
On Tuesday, Illinois Gov. Pat Quinn received a letter informing him that President Obama plans to transfer terrorism suspects currently held in Guantánamo Bay, Cuba, to a little-used prison in a rural part of his home state....
The letter informed Governor Quinn that, as my colleague Charlie Savage reported on Monday, President Obama has directed the federal government to proceed with acquiring the Thomson Correctional Center, a maximum-security prison in a rural village about 150 miles west of Chicago.
Perhaps the most interesting aspect of the letter — which was given added weight by the signatures of Secretary of State Hillary Rodham Clinton, Secretary of Defense Robert M. Gates, Attorney General Eric H. Holder, Jr., Secretary of Homeland Security Janet Napolitano and Director of National Intelligence Dennis C. Blair — is the promise that the federal government will renovate the maximum security prison so that “after acquisition it will be enhanced to exceed perimeter security standards at the nation’s only ’supermax’ prison in Florence, Colorado, where there has never been an escape or external attack.”
The federal “supermax” facility in Colorado is home to prominent Islamic militants convicted of terrorist offenses, including Ramzi Yousef, who carried out the World Trade Center bomber in 1993, and Richard Reid, the “shoe-bomber,” who failed to ignite a bomb concealed in his sneakers on a flight from Paris to Miami in 2001.
December 15, 2009
A distinctively eastern approach to alternative sentencing in Missouri
A helpful reader forwarded to me this interesting story from the Washington Post which is headlined "From incarceration to meditation in Missouri: For 14 years, guru has run alternative program for parolees." Here is how the piece gets started:
It was a routine business conference for the judge: Agendas. Handshakes. Business cards. But then something kind of mystical happened.
David Mason was approached by a man wearing a crisp suit with a neatly pointed kerchief in his breast pocket. In a measured Indian accent, the man said he, too, was a lawyer and knew all about the judge and his enlightened views on criminal rehabilitation. He wanted to tell him about the power of meditation in prisons.
The man was Farrokh Anklesaria. He was a direct student of the Maharishi Mahesh Yogi, and he'd been sent around the world by him to bring meditation to convicts. He'd been to Switzerland, Senegal, Kenya, Brazil and Sri Lanka. And by a mixture of circumstances -- and perhaps karma -- he had landed in Missouri.
Anklesaria, a native of Mumbai who chose meditation over his family's legacy in law, hadn't had much luck in other parts of the country. He had heard that Mason was a proponent of alternative sentencing, and he wanted his help to start a meditation program for criminal offenders in Missouri. "I thought he was crazy at first," recalled Mason, a circuit judge in St. Louis.
That was 14 years ago. With the backing of Mason and other judges ranging from the circuit court to the federal bench and the Missouri Supreme Court, Anklesaria has become the region's guru for training parolees in meditation. His nonprofit Enlightened Sentencing Project provides 20 weeks of instruction in Transcendental Stress Management for parolees who have committed a gamut of crimes, including drunken driving, assault and theft.
Numerous studies point to the health benefits of Transcendental Meditation, including one by the National Institutes of Health that indicates regular meditation decreases high blood pressure and depression. Other studies find merits in meditation programs done in prisons -- places that Anklesaria calls "areas of concentrated stress." But no one has formally studied Anklesaria's program. He's calculated that of the hundreds who have completed the program, just 6 percent have returned to crime.
To close a long day with perhaps a little levity, let me encourage readers to suggest what sort of meditation mantras they think might be especially effective at reducing recidivism. I suppose we could start with something straight-forward like "Ohhhhmmm, I won't commit crimes... Ohhhhmmm, I won't commit crimes... Ohhhhmmm, I won't commit crimes." But I better commentors can do a lot better.
A SCOTUS criminal justice term to remember (and the impact of Justice Sotomayor?)
With the addition of three new criminal justice cases to its docket yesterday (details here), the Supreme Court has further ensured that many of the biggest stories from the current Term are going to involve criminal justice issues. I noted in this post back in October that there were a huge number of significant sentencing cases on the SCOTUS docket for October Term 2009, and the Court's criminal justice docket has only gotten only larger and more dynamic with grants in the last few months on topics ranging from calculation of good time credits to Fourth Amendment rights in text messages to crack sentencing modification authority.
Critically, there are not just a lot of criminal justice cases, but there are also a lot of very important and very challenging cases that seem unlikely to be resolved through the "traditional" right/left splits among the Justices. Though the important juve LWOP Eighth Amendment cases might still produce the "usual" split among the Justices, oral arguments in the Padilla plea case and in the honest services cases suggest that there could be some novel voting blocks in rulings to come. And, similarly, I do not think the usual left/right calculus allows for easy predictions concerning how the court might resolve the commerce clause issue in the upcoming Comstock sex offender case or the incorporation issue in the upcoming McDonald Second Amendment case.
In short, this SCOTUS Term is an especially exciting and dynamics time for persons interested in criminal justice matters to be closely watching the work of the Justices. And as my post title hints, I think we can and should consider thanking new Justice Sotomayor for at least some of these developments. I have speculated in the past that the initial addition of a real prosecutor like Justice Alito seem to help the Justices understand the importance of taking up more criminal justice issues with day-to-day importance, and I suspect the more recent addition of another real prosecutor like Justice Sotomayor has continued and accelerated this important and valuable trend.
"Purple Hearts On Death Row: War Damaged Vets Should Not Be Executed By the State"Thanks to a reference from Death Penalty Information Center, I just came across this commentaryby By Karl Keys and Bill Pelke which has the title that appears in the heading of this post. Here are excerpts:
Mental exhaustion. Battle fatigue. PTSD. Whatever it's called, many of our soldiers who served in wars over the years came home with combat-related mental illness, traumatized by the carnage and destruction they saw and experienced.
Unfortunately, too many veterans' mental conditions have fueled criminal behavior resulting in their imprisonment. Dating back to the Civil War, veteran incarceration rates increased after each conflict.
This is not a small, marginal problem. Government statistics for the 1980s show that 21 percent of state prison inmates then were Vietnam veterans. The U.S. Department of Defense and the Veterans Administration estimate that two of every five of the 800,000 new Iraq and Afghanistan war veterans exhibit post-traumatic stress disorder (PTSD) symptoms....
As veterans ourselves, we believe that people who commit crimes as a result of severe mental impairments should not be executed. In 2006, the American Bar Association's House of Delegates adopted that recommendation, which was officially endorsed by the American Psychiatric Association, the American Psychological Association, and the National Alliance on Mental Illness.
The piece discusses the cases of two Vietnam veterans — James Floyd Davis and Manny Babbitt — who were sentenced to death for murders after their return from war. (Davis is still on death row and Babbitt was executed a decade ago.) Unfortunately, the piece does not discuss or try to document how many of the 3200+ persons now on death row are veterans with (or without) direct experiences in a theater of war.
Of course, some of the most notorious modern American murderers have military service on their resume — including Tim McVeigh and the Fort Hood shooter,