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,
Two notable new sentencing notes in the Michigan Law Review
The latest issue of the Michigan Law Review includes these two notes that sentencing fans will want to check out:
December 14, 2009
A fitting and overdue call for "conservatives to take ownership of prison reform"This op-ed by Ross Douthat in today's New York Times, which is titled "Prisons of Our Own Making," is the best and most-important piece of post-Clemmons commentary I have seen in the weeks since Mike Huckabee has been pilloried for granting clemecny to a prisoner who, a decade later, went on a horrific murder spree. Here are excerpts:
If you’re a governor with presidential aspirations, you should never, under any circumstances, pardon a convict or reduce a sentence. That’s the lesson everyone seems to have drawn from the dreadful case of Maurice Clemmons, an Arkansas native who murdered four Lakewood, Wash., police officers over Thanksgiving weekend — nine years after Mike Huckabee, then governor, commuted his sentence and the Arkansas parole board set him free.
Even before Clemmons was shot dead the following Tuesday by Seattle police officers, a chorus of pundits had declared Huckabee’s presidential ambitions all but finished. His prospective 2012 rivals — Mitt Romney, Tim Pawlenty and Sarah Palin — hastened to suggest that they never considered issuing a pardon while governor. And even observers sympathetic to Huckabee’s decision (Clemmons’s original 108-year sentence was handed down when he was only 16, and for burglary and robbery, not murder) tended to emphasize its folly. Joe Carter, who handled rapid-response for Huckabee’s 2008 campaign, acknowledged that the “prudent tactic would have been to simply refuse to grant any leniency — ever.”
This calculus has recent American history as well as crude political logic on its side. Without conservative lawmakers willing to “err on the side of punishing” (as Palin put it after the Clemmons shooting), America might still be swamped by the crime wave that engulfed the country in the 1960s and ’70s....
There are superficial resemblances, much cited in the last two weeks, between the Horton case and the tragic parole of Maurice Clemmons. But the political context is completely different. The age of furloughs is long gone. For a generation now, conservatives, not Dukakis-style liberals, have been making policy on crime. They’ve built more prisons, imposed harsher sentences and locked up as many lawbreakers as possible.
Their approach has worked. The violent crime rate has been cut by nearly 40 percent since its early-1990s peak. The murder rate is at its lowest point since Lyndon Johnson was president.
Yet the costs of this success have been significant: 2.3 million Americans are behind bars. Our prison system tolerates gross abuses, including rape on a disgraceful scale. Poor communities are warped by the absence of so many fathers and brothers. And every American community is burdened by the expense of building and staffing enough prisons to keep up with our swelling convict population.
Mass incarceration was a successful public-policy tourniquet. But now that we’ve stopped the bleeding, it can’t be a permanent solution. This doesn’t require a return to the liberal excuse-making of the ’60s and ’70s. Nor does it require every governor to issue frequent pardons. (A capricious mercy doesn’t further the cause of justice.)
Instead, it requires a more sophisticated crime-fighting approach — an emphasis, for instance, on making sentences swifter and more certain, even as we make them shorter; a system of performance metrics for prisons and their administrators; a more stringent approach to probation and parole. (“When Brute Force Fails,” by the U.C.L.A. public policy professor Mark Kleiman, is the best handbook for would-be reformers.)
Above all, it requires conservatives to take ownership of prison reform, and correct the system they helped build. The Democrats still lack credibility on crime policy. Any successful reform requires the support of the law-and-order party.
To their credit, some Republican lawmakers (many of them religious conservatives) are already hard at work on this issue. But the case of Maurice Clemmons may cast a long shadow over conservative politics, frightening politicians away from even the most sensible reforms — lest they wake up to a tragedy, and find themselves assigned the blame.
First Circuit dismisses government sentencing appeal with peculiar request
I enjoy sentencing law and policy because it is often an effective setting for the exercise of lawyerly creativity in the pursuit of substantive justice. But a First Circuit ruling today in US v. Giggey, No. 09-1542 (1st Cir. Dec. 14, 2009) (available here), suggests that some federal prosecutors may be getting a little too creative in their pursuit of sentencing appeals. Here is how the unusual opinion in Giggey starts and ends:
This appeal is a sequel to our en banc decision in United States v. Giggey, 551 F.3d 27 (1st Cir. 2008), in which we remanded a criminal case for re-sentencing. Following the new sentence the government now appeals; it does not challenge the new sentence on the merits but requests that we ask the Sentencing Commission to clarify how courts ought properly to apply the Sentencing Guidelines to non-dwelling burglary....
In this appeal, the government has not argued for reversal on the grounds that the district court mis-identified the crime of conviction, that it mis-assessed the risk presented by the nature of class C burglary or that it improperly considered evidence of Giggey's specific conduct. Instead, it urges our court to stay the government's appeal and request the Sentencing Commission to clarify whether non-dwelling burglary is a "crime of violence" for career offender purposes. Conceivably we could do so, although no exact precedent for this course is cited. Cf. United States v. Gondek, 65 F.3d 1, 4 (1st Cir. 1995) (advising the Commission of a recurring problem after decision).
However, the Commission has been aware for some time of the debate about non-dwelling burglaries and, even if it chose to amend or clarify its existing guideline, that is usually a lengthy process. Further, it is not clear what help the Commission would be likely to furnish where, under Taylor's approach, we face the task of assessing the comparability of the risk of an offense as defined by a particular state statute. No doubt the Commission could amend its guideline to enlarge or narrow its coverage, but an enlargement would not apply retroactively and a narrowing would not change the result in this case.
Because there is no specification of error by the government directed to the district court's reasoning or findings and the government's alternative request that we consult the Commission is unpromising, we dismiss the appeal.
I hope I do not now need to worry about whether the federal prosecutors who pursued this appeal are now considering expending additional federal resources to appeal this dismissal to the Supreme Court.
Notable coverage of efforts in Michigan to reform state's sex offender registry
As my copious blog posts today reveal, there seems to be a lot of especially good reading for sentencing fans in the newspapers today. And here are two notable pieces from Michigan discussing sex offender registries to add to the list:
- Coalition: Focus Mich. sex offender registry on risk
- At least two state lawmakers personally affected by ‘pervasive’ sex offender registry
The first piece reports this notable fact: "With over 45,100 names and faces on the registry of convicted sex offenders –- and even some whose records are conviction-free –- Michigan holds the eyebrow-raising distinction of having the highest ratio of its citizens on a state sex offender registry."
The second piece add this interesting twist:
According to Shelli Weisberg, legislative director of the American Civil Liberties Union of Michigan, there are now lawmakers (plural) with more than a passing interest in the registry. “Another thing — and we knew that it would come sooner or later — is that we do have now two representatives now in the Michigan legislature who have family members that have been affected by the registry,” Weisberg told Michigan Messenger.
Fascinating report on New York's broken juve prison systemAfter beating up on the New York Times' editorial work here, I must give the Old Gray Lady props for this potent front-page story about New York's prison system for juvenile offenders. The piece is headlined "New York Finds Extreme Crisis in Youth Prisons," and here is how it begins:
New York’s system of juvenile prisons is broken, with young people battling mental illness or addiction held alongside violent offenders in abysmal facilities where they receive little counseling, can be physically abused and rarely get even a basic education, according to a report by a state panel.
The problems are so acute that the state agency overseeing the prisons has asked New York’s Family Court judges not to send youths to any of them unless they are a significant risk to public safety, recommending alternatives, like therapeutic foster care.
“New York State’s current approach fails the young people who are drawn into the system, the public whose safety it is intended to protect, and the principles of good governance that demand effective use of scarce state resources,” said the confidential draft report, which was obtained by The New York Times.
Thanks to the NYTimes, everyone can access the referenced (not-so-)confidential draft report at this link.
New York Times (irresponsibly?) contends "There Is No ‘Humane’ Execution""There Is No ‘Humane’ Execution" is the headline of this new New York Times editorial, which highlights yet again that those inclined to complain most loudly about various methods of execution are really fundamentally troubled by the entire business of capital punishment. Here are snippets from what strikes me as a somewhat irresponsible editorial:
This is what passes for progress in the application of the death penalty: Kenneth Biros, a convicted murderer, was put to death in Ohio last week with one drug, instead of the more common three-drug cocktail....
Ohio adopted the single-drug formula after the botched execution. It may well be an improvement over the three-drug cocktail, or may not. (Death penalty advocates who hailed it as less painful have no way, obviously, of knowing that.) But the execution only reinforced that any form of capital punishment is legally suspect and morally wrong.
Justice Ruth Bader Ginsburg noted, in a dissenting opinion in a death penalty case last year, that critics have charged that the three-drug cocktail poses a serious risk that the inmate will suffer severely. The one-drug method was not used before last week on human beings, and Ohio should not have used it without a more public airing of its strengths and weaknesses, with input from medical and legal authorities.
The larger problem, however, is that changing a lethal-injection method is simply an attempt, as Justice Harry Blackmun put it, to “tinker with the machinery of death.” No matter how it is done, for the state to put someone to death is inherently barbaric.
It has also become clear — particularly since DNA evidence has become more common — how unreliable the system is. Since 1973, 139 people have been released from death row because of evidence that they were innocent, according to the Death Penalty Information Center.
An untold number of innocent people have also, quite likely, been put to death. Earlier this year, a fire expert hired by the state of Texas issued a report that cast tremendous doubt on whether a fatal fire — for which Cameron Todd Willingham was executed in 2004 — was arson at all. Until his execution, Mr. Willingham protested his innocence.
Most states still have capital punishment, and the Obama administration has so far shown a troubling commitment to it, pursuing federal capital cases even in states that do not themselves have the death penalty.
Earlier this year, New Mexico repealed its death penalty, joining 14 other states — and the District of Columbia — that do not allow it. That is the way to eliminate the inevitable problems with executions.
I describe this editorial as "somewhat irresponsible" principally because of the phrases I have emphasized above. The piece suggests only "death penalty advocates" hailed Ohio's new one-drug protocol as a less painful alternative without mentioning that defense-attorney critics of the three-drug approach often urged a one-drug approach. Similarly, the piece suggests Ohio should have had a "a more public airing of its strengths and weaknesses, with input from medical and legal authorities" without mentioning that Ohio did reach out to numerous medical and legal authorities when developing its new protocol. Finally, as serious students of the death penalty know, the Willingham case is the closest we've gotten to a clear showing an innocent person may have been executed; to suggest that a large number of innocent people have quite likely been put to death is especially misguided.
I understand and have great respect for anyone and everyone eager to make the categorical moral assertion that "for the state to put someone to death is inherently barbaric." But it is especially important for those making such a claim to avoid seeking to bolster their arguments with specious facts and suspect suggestions. This editorial has certainly lowered my opinion of the Old Gray Lady a bit.
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
Terrific reporting on prosecutorial declinations and prosecutor elections
Thanks to a helpful reader, I discovered a pair of remarkable pieces about the work of state prosecutors from the Waco Tribune-Heraldunder the banner "Measuring Justice." Here are links to the pieces and their openings:
The McLennan County District Attorney’s Office does not pursue half of all felony cases recommended by law enforcement officials, with prosecutors dropping most of those cases before formal charges are filed.
At first glance, that statistic might appear to bolster the complaints of some local police, who frequently grouse in private about the prosecutors’ handling of cases. The perception that McLennan County District Attorney John Segrest and his staff dismiss too many cases is one reason the Sheriff’s Law Enforcement Association of McLennan County has decided not to support Segrest in next year’s election. The group, along with the Waco Police Association, has endorsed local defense attorney Abel Reyna, who is a candidate for the post.
But criminal justice experts say a 50 percent nonprosecute rate could be a sign of an exceedingly well-run office just as easily as it could be a cause for concern. What is truly troubling is that in most jurisdictions, voters don’t have the information they need to judge that, even at election time, they said.
Marc Miller likes to joke that district attorneys lose elections only slightly less often than leaders did in the old Soviet Union. The quip isn’t too far from the truth, though, the University of Arizona law professor said. A recent study of chief prosecutor elections across the nation found that when incumbents run, they win 95 percent of the time.
The primary reason for that success is that incumbent prosecutors aren’t even challenged in 85 percent of elections. In jurisdiction after jurisdiction, prosecutors are allowed to coast into another term without having to explain how their offices have performed, Miller said.
I cannot say enough about how impressed I am with the reporters and editors of the Waco Tribune-Herald for giving such extended and effective coverage to critically important criminal justice issues that are rarely examined and even more rarely understood.
Bad judges, bad judges . . . whatcha gonna do?
- "Judging the judges: Does secret process let errant jurists get away with breaking the law?"
- "Despite troubles, some on bench keep salaries; Those who do admit misdeeds don't always leave the public payroll"
Here is how the first of these pieces gets started:
One federal judge got arrested for driving drunk while dressed in drag. Others stood accused of frequenting prostitutes, a strip club and a shady escort service; sexually assaulting female court employees; sucker-punching a stranger; or slapping a spouse.
Federal judges have made illegal campaign contributions, falsified court records, and illegally concealed cash gifts and gambling debts. Many more have engaged in unethical or irresponsible acts, according to an investigation by the Houston Chronicle of more than 3,000 judicial misconduct matters nationwide and analysis of related records over 10 years.
Most get away with it.
Only seven judges in the last decade have faced formal disciplinary action as a result of the nation's secretive misconduct review process. In that same period, citizens filed more than 6,000 formal misconduct complaints, the Chronicle found.
SCOTUS grants cert on three new (sort-of) criminal justice cases
As detailed in this SCOTUSblog post, this morning the Supreme Court grant cert on three new cases. Here is the SCOTUSblog description of the new grants:
The three newly granted cases raised these issues: whether the Fourth Amendment protects the privacy of text messages that a government employee sends by an electronic paging device (Ontario, Calif., et al., v. Quon, et al., 08-1332); whether prosecution for criminal contempt of a court created by Congress may be brought by a private individual in her own name (Robertson v. U.S. ex rel. Watson, 08-6261), and whether a legal alien living permanently in the U.S. is subject to deportation for simple possession of a drug, if that was a second or third such prosecution but the individual was not formally charged as a repeat offender (Carachuri-Rosendo v. Holder, 09-60).
I find interesting and notable that all of these cases raise important criminal justice issues outside traditional criminal justice settings. The Carachuri-Rosendo case would seem to be of greatest interest to sentencing fans, though perhaps there are interesting sentencing stories lurking in the other cases as well.
December 13, 2009
"When California denies a murderer parole, should it need a reason?"
The title of this post is the headline of this notable article in today's Los Angeles Times. Here are some highlights:
[In California, there are] hundreds of so-called lifers whom state parole boards have deemed rehabilitated and ready to rejoin society, but who sit behind bars because their crime was murder. In recent years, some judges have sided with lifers, ruling that the state can't deny an inmate parole solely because of the gravity of his original offense but rather must provide "some evidence" that he would pose a threat to public safety if released....
Until the 1980s, when a succession of tough-on-crime governors came to power, parole was routine for those sentenced to life who showed evidence of rehabilitation. In 1983, Gov. George Deukmejian invoked what was then a rarely used 1913 law to overrule the parole board decision to free murderer William Archie Fain after an angry outcry from the small Northern California town of Oakdale, where Fain's victims had lived.
Deukmejian's successor, Gov. Pete Wilson, reversed parole grants with more frequency, and Gov. Gray Davis embraced a virtual no-parole-for-murderers policy, freeing only six during his tenure, five of them women whose crimes stemmed from domestic abuse. Schwarzenegger also has been loath to release killers, granting only four such paroles himself but allowing more than 300 other parole board decisions to go through without his review....
Victims' rights organizations defend what they consider the governor's responsibility, as well as his power, to keep murderers off the streets, especially in the current economic crisis, which has cut funding for law enforcement and parole supervision. "For the sake of public safety -- that's what we have life sentences for," said Harriet Salarno, head of Crime Victims United of California, whose 18-year-old daughter, Catina, was murdered by a man who comes up for his ninth parole hearing early next year. "That should be a deterrent to crime: that you won't ever get out if you get a life sentence."
Bill Schmidt, an attorney who specializes in representing lifers, says the question of whether reformed prisoners should get parole is often clouded by the horrific nature of their crime. For example, he said, even though Charles Manson has shown little remorse or rehabilitation for his 1969 cult slayings, some of his accomplices have maintained unblemished records for nearly four decades. Nonetheless, he said, they have been systematically denied parole. Even prison authorities' recommendation for release of Manson follower Susan Atkins on compassionate grounds was rejected before she died of brain cancer in September....
In the case now before the 9th Circuit, convicted murderer Ronald Hayward challenged Davis' reversal of the parole board's decision to release him after 27 years' imprisonment for the stabbing death of a motorcycle gang member who had attempted to rape Hayward's girlfriend. A three-judge panel of the appeals court ruled in January 2008 that Hayward's constitutional right to due process had been violated because the governor failed to cite any evidence that Hayward was still dangerous.
The three-judge panel ruled that a parole board's decision "deprives a prisoner of due process with respect to this [liberty] interest" if the decision is "not supported by some evidence in the record or is otherwise arbitrary." The judges' decision was suspended four months later by the court's vote to reconsider the case by a full 11-judge panel.
Supervising Deputy Atty. Gen. Jennifer Neill has urged the appeals court to reconsider whether prisoners have a liberty interest in parole decisions, arguing that the U.S. Supreme Court hasn't recognized a right to parole barring evidence that a prisoner remains dangerous. Life prisoners have no right to a term less than life, Neill argues, so denial of parole "merely means that the inmate will have to serve out his sentence as expected."
The push in Oregon for a racial-impact requirement in crime billsThis local article, which is headlined "Racial-impact rule proposed for crime bill," discusses a push in Oregon for including a racial-impact analysis in every crime bill. Here is how the piece begins:
A white lawmaker from Oregon has turned to a black lawmaker from Iowa for help with a proposal to weigh how crime legislation may affect racial and ethnic minorities. The bill is similar to existing requirements for assessing how proposed laws affect state budgets, revenues and local governments.
Sen. Chip Shields, D-Portland, sponsored such bills in the 2007 and 2009 sessions, when he was in the House. He plans to try again in 2011, if he wins the 2010 election for the final two years remaining in the term of Margaret Carter, who resigned to become a deputy director of the Department of Human Services.
Shields invited help from Iowa, where the nation's first such law was approved in 2008. Specifically, he turned to Rep. Wayne Ford, another Democrat whose district covers part of Polk County, Iowa — and whose seat is Des Moines, Iowa's capital.
Unlike the fiscal- and revenue-impact statements accompanying any bill that gets serious consideration in the Oregon Legislature, Shields said a racial-impact statement would be prepared only on request, and the requirement would be applied only on some types of crime legislation, such as bills affecting sentencing.
Ford said Iowa's racial-impact law, which he modeled on language suggested by the Sentencing Project in Washington, D.C., and by Shields's 2007 bill, also is invoked only on request. "An analysis may find that more blacks will be locked up as a result of a bill," said Ford, who made a two-day swing through Oregon in November. "If that is true, I have a right to continue with the bill through committee, or I have a right to stop it. It's a good informational piece to go along with the fiscal notes, and we know how important those are."
I see only positive aspects to a requirement that all relevant criminal justice bills include information about the likely racial impact of the bill. I hope this innovation succeeds not only in Oregon, but also in many other states. In addition, it would be profoundly exciting if the U.S. Sentencing Commission prepared this kind of information for federal criminal justice proposals, but I am not holding my breath.