Sentencing Law and Policy

"Supreme Court justices have a good time debating 'good time'"

The title of this post is the headline of this CCN report on yesterday's Supreme Court argument in Barber v. Thomas (09-5201).  Here's more:

Sometimes the most complicated of cases at the Supreme Court brings out the best arguments.  It certainly brought out the giggles in a little-watched appeal Tuesday over federal prison terms.

The justices managed to crack themselves up -- along with the public audience -- at least a dozen times in the hourlong oral debate.  Justice Clarence Thomas rarely speaks at the high court's normally sober sessions, but he especially enjoyed the gentle insults and self-deprecating jibes his colleagues showered on each other. His booming laugh could be clearly heard at times.

At issue was how the federal Bureau of Prisons should calculate "good-time credit" -- reduced sentences for inmates staying out of trouble in custody.  Prisoners can earn up to 54 days of credit for each year of the sentence....

Despite the fun, the question is a serious one for the nearly 197,000 federal prisoners and their families, according to the most recent weekly population report issued by the Justice Department. Ninety-five percent of the inmates are affected by the good-time provision. Lawyers for the inmates say the savings to taxpayers under their reading of the law would amount to $953 million a year now being spent to incarcerate current prisoners.

The case is Barber v. Thomas (09-5201).  A written ruling -- minus any jokes -- is expected by June.

Comically, I have been so busy the last few days, I have not yet even had a chance to read the Barber transcript yet (which is available here).  For reasons hinted in this article, however, this case could prove to be the sleeper sentencing case of the Term.

Are California death sentences going up because of a lack of executions?

The question in the title of this post is inspired by this new article from the San Francisco Chronicle, which is headlined "State death sentences rise as U.S. total falls."  Here are the basics:

As the number of death sentences declined nationwide in 2009, death verdicts in California rose to their highest total in nearly a decade, the American Civil Liberties Union said Tuesday. All but five of the 29 California death sentences last year were handed down in Los Angeles, Orange and Riverside counties, the ACLU said....

Nationally, death sentences fell to 106 in 2009, their seventh straight year of decline and the lowest total since the Supreme Court reinstated the death penalty in 1976, according to an earlier report from the Death Penalty Information Center, a separate organization....

"All California communities would be better served if California opted for permanent imprisonment as a safe and cost-effective alternative to the death penalty," said Ramona Ripston, executive director of the ACLU of Southern California.

The group cited a state commission's 2008 report that said capital punishment was costing California $137 million a year. It would cost another $95 million a year to cut appeals times to the national average, the panel said.

The California District Attorneys Association disputed the report's conclusion that abolishing the death penalty would bring major cost savings. The association's executive director, Scott Thorpe, also questioned the ACLU's report Tuesday.

Rather than focusing on one year's statistics, Thorpe said, "you have to look at a number of years to determine what is a trend or an aberration." He noted that death sentences had averaged fewer than 20 a year statewide in the four years before 2009. He also observed that last year's total was well below the 41 death sentences issued in 1999, the most since California reinstated its death penalty law in 1977.

The ACLU report, based on state records, pointed to one long-term trend, an increase in the number of African Americans and Latinos on Death Row. They accounted for more than 65 percent of the death sentences in 2009 and make up more than 58 percent of the condemned prisoners in the state, compared with 44 percent of the general population, the report said.

California has the largest Death Row of any state, with 701 prisoners, more than one-fifth of the nation's total.

I do not think it is too surprising that the number of death sentences are rising in California at the same time that lethal injection has created a long-term de facto moratorium on executions in the state.  I suspect that jurors in capital cases (justifiably) consider their vote for death in these cases to be largely symbolic with little or no practical consequence on the likely fate of the defendant they condemn.  Ironically, jurors' decision to vote for death more often may do some California defendants a favor: there is every reason to suspect and predict that the Ninth Circuit will review a murderer's conviction and sentence even more closely when that murderer received a sentence of death rather than life.

"The Second Amendment and People with Medical Marijuana User Cards"

The title of this post come from the title of this Eugene Volokh post over at his Conspiracy. The post combines two of my favorite hot topics, and here is how it starts:

The AP reports that Steve Sarich — who “runs CannaCare, an organization that claims 7,000 members in the state,” which among other things “provides patients with marijuana clones or starter plants and delivers about 50 patients a week with usable marijuana” — has been told by the King County Sheriff’s Office that he may not buy a gun.

The federal law underlying the prohibition is 18 U.S.C. § 922, which bars possession of guns by (among others) anyone “who is an unlawful user of or addicted to any controlled substance,” and bars transfers of guns to such people. The sheriff’s office reported that the FBI’s National Instant Criminal Background Check System “informed us that possession of a medical drug card is sufficient to establish an inference of current use,” and that therefore the sheriff’s office can’t approve the transfer of a gun to Sarich.

Second Circuit rules NY Persistent Felony Offender law now clearly violates Blakely

Via a lengthy ruling today in Besser v. Walsh, No. 05-4375 (2d Cir. Mar. 31, 2010) (available here), a panel of the Second Circuit has declared unconstitution New York state's Persistent Felony Offender sentencing law.  Here is a key paragraph from the start of Judge Winter's opinion for the panel:

We hold that the Sixth Amendment right to a jury trial, applicable to the states as incorporated by the Fourteenth Amendment, prohibits the type of judicial fact-finding resulting in enhanced sentences under New York’s PFO statute.  We also hold that this prohibition was not clearly established until Blakely v. Washington, 542 U.S. 296 (2004).  Because Besser’s conviction became final before Blakely issued, the state court decisions upholding his conviction were neither contrary to nor an unreasonable application of clearly established federal law.  We therefore affirm the denial of the writ as to Besser.   However, because the relevant state court decisions upholding enhanced sentences for Phillips, Morris, Portalatin, and Washington were issued after Blakely, those decisions were not reasonable applications of clearly established law.  Nevertheless, we remand these cases to the district court for a determination of whether the error was harmless.

It will be very interesting to see if New York considers appealing this ruling to the full Second Circuit or to the US Supreme Court.  Any predictions, dear readers?

Padilla prevails in his ineffectiveness claim concerning plea advice

Though the Supreme Court has not yet handed down the big juve LWOP Eighth Amendment case I have been eagerly awaiting, this morning the Justices did resolve the Padilla v. Kentucky case.  Here is the initial SCOTUSblog account:

We have the second and final opinion: No. 08-651, Padilla v. Kentucky; The lower court decision is reversed and remanded in an opinion by Justice Stevens; Justice Alito wrote an opinion concurring in the judgment, joined by the Chief Justice. Justice Scalia dissents, joined by Justice Thomas.

The holding: An alien charged with crime has a constitutional obligation to tell the client that a guilty plea carries a risk that he will be deported. The Court, however, does not decide whether the individual in this specific case has been prejudiced by the lawyer's failure to give that advice.

The opinion is available at this link.  I now need to run off to teach class, but I expect to have a chance to comment on this (very?) important decision later today.

Telling(?) distractions during Dillon SCOTUS oral argument

I have now had a chance to review quickly the transcript from yesterday's Supreme Court oral argument in Dillon, which can be accessed here.  I am eager to here reader reactions, and this piece in the Pittsburgh Post-Gazette, which is headlined "Justices hear appeal on drug penalty inequities," summarizes most of the highlights better than I could. My first cut reaction is that, at many stages, certain Justices seemed to be distracted by concerns that suggest that they may not be especially sypathetic to Percy Dillon's fate.

For example, Justice Ginsburg suggests that it would not be "fair" for Percy Dillon to get a chance to have his severe crack sentence impacted by Booker when "others whose sentence has become final cannot get into the court's door because they don't have the entering wedge" provided by the revision of the crack guidelines.  But this expressed concern for systemic "fairness" is itself driven by the Justices own disinclination to allow the Booker remedy to apply retroactively, and it also fails to deal with the fact that Dillon was originally subject to a unique form of unfairness because his original sentence was so inflated by the old severe crack guidelines.  The way Justice Ginsburg frames her concerns about fairness suggests she thinks Dillon should not get a "special" chance to get a true post-Booker assessment of sentencing justice.

Is the mass media to blame for a distorted perceptions of criminal danger?

The question in the title of this post is inspired by this interesting new piece published in Crime, Media, Culture: An International Journal, which is available via SSRN.  The piece is titled "The Ambivalent Consequences of Visibility: Crime and Prisons in the Mass Media," and here is the abstract:

This article aims to demonstrate that, despite their potential for cultivating communitarianism and deliberative democracy on a large scale, the mass media contribute decisively to the formation of punitiveness amongst the public by means of selective semiotic aestheticisation. They overstate the problem of crime; put the blame on marginalised cohorts and level heavy criticism against the administration of prisons purportedly for laxity; issue urgent calls for ever-greater reliance on the use of strict imprisonment by the authorities and the adoption of self-policing measures by local communities and private individuals; and either mute or neutralise the attendant hardships prisoners suffer at the hands of the state.  Breaking with discourses of rational linearity, whereby distorted perceptions of criminal danger result in punitive reactions, the claim is made that the imagery of crime and punishment helps audiences resolve at the level of symbolic expression contradictions which remain unconsciously insoluble at the level of everyday life.

"Justice Kennedy prods Obama to commute sentences"

The title of this post is the headline of this notable partial report on one of today's oral arguments from by Josh Gerstein over at Politico.  Here is how it starts:

During arguments at the Supreme Court today, Justice Anthony Kennedy lamented the paucity of commutations presidents have granted in recent years. Kennedy also seemed to prod President Barack Obama, who has yet to issue a single pardon or commutation, to wield the clemency power granted to chief executives.

The case before the court, brought by convicted cocaine dealer Percy Dillon, was about how much discretion judges have when resentencing convicts who are eligible for sentence reductions due to efforts to remedy differences between crack and powdered cocaine. Kennedy apparently surprised Justice Department attorney Leondra Kruger by asking whether prisoners like Dillon, who was sentenced to more than 26 years, might get any relief from the White House.

"Does the Justice Department ever make recommendations that prisoners like this have their sentence commuted?" Kennedy asked. "I am not aware of the answer to that, Justice Kennedy," Kruger said.

"Isn't the population of prisoners in the federal prisons about 185,000 now? I think it is. And how many commutations last year? None. How many commutations the year before? Five. Does this show that something is not working in the system? 185,000 prisoners? I think that is the number," Kennedy declared. "I'm not prepared to speak to that question today," Kruger replied.

In fact, according to this BOP webpage, the current federal prison population is 210,384 as of March 25, 2010.

New ACS issue brief on felon disenfranchisement

I just received via e-mail this ACS Issue Brief on felon disenfranchisement by Deborah J. Vagins, Legislative Counsel for the Washington Legislative Office of the American Civil Liberties Union, and Erika Wood, Deputy Director of the Democracy Program at the Brennan Center for Justice at NYU School of Law. The issue brief is titled "The Democracy Restoration Act: Addressing A Centuries-Old Injustice," and here is how ACS described this Issue Brief:

In this Issue Brief, Vagins and Wood discuss what they see as the next obstacle to overcome in expanding the right to vote as part of America's history of "successful struggles to expand the franchise to include those previously barred from the electorate because of race, class, or gender." According to the authors, "5.3 million American citizens are denied the right to vote because of criminal convictions." As Vagins and Wood point out, "[n]early 4 million of those who are disfranchised are out of prison, working, paying taxes, and raising families, yet they are without a voice" because they cannot fully participate in our democracy.

Vagins and Wood detail the roots of many disfranchisement laws that come from the Jim Crow era when they were designed to stop African Americans from voting. The authors note that the effects of these laws are still being felt today, pointing out that, “[n]ationwide, 13% of African American men have lost the right to vote as a result of a criminal conviction – a rate seven times the national average.” The laws regarding felon disfranchisement vary widely in different states, ranging from allowing prisoners to vote while they are in prison to permanently disfranchising people convicted of some crimes. The authors discuss this confusing patchwork of laws and how reform efforts have moved forward in some states, often with bipartisan and diverse support, while there has been no progress in other states, adding to the confusion for any person trying to figure out what his or her rights are. Vagins and Wood observe that, “[a] democracy’s strength is derived from broad civic engagement and election participation,” and point out that, “the United States is one of the few western democratic nations to exclude such large numbers of people from the democratic process.” The authors argue that this undermines our country’s ability to fully rehabilitate and reintegrate citizens returning from jail back into society. Last week, the U.S. House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties, held a hearing on the Democracy Restoration Act, which is one solution to address the issues they discuss, and the authors conclude that it "must be enacted in order to restore voting rights to millions of American citizens in federal elections and to finally redress a centuries-old injustice.", Vagins and Wood discuss what they see as the next obstacle to overcome i

What would be the right kind of sentence for teen bullies now prosecuted for classmate's suicide?

The question in the title of this post is inspired by this notable story in today's New York Times, which is headlined "9 Teenagers Are Charged After Classmate’s Suicide." Here are some of the details:

It is not clear what some students at South Hadley High School expected to achieve by subjecting a freshman to the relentless taunting described by a prosecutor and classmates. Certainly not her suicide. And certainly not the multiple felony indictments announced on Monday against several students at the Massachusetts school.

The prosecutor brought charges Monday against nine teenagers, saying their taunting and physical threats were beyond the pale and led the freshman, Phoebe Prince, to hang herself from a stairwell in January. The charges were an unusually sharp legal response to the problem of adolescent bullying, which is increasingly conducted in cyberspace as well as in the schoolyard and has drawn growing concern from parents, educators and lawmakers.

In the uproar around the suicides of Ms. Prince, 15, and an 11-year-old boy subjected to harassment in nearby Springfield last year, the Massachusetts legislature stepped up work on an anti-bullying law that is now near passage. The law would require school staff members to report suspected incidents and principals to investigate them. It would also demand that schools teach about the dangers of bullying. Forty-one other states have anti-bullying laws of varying strength.

In the Prince case, two boys and four girls, ages 16 to 18, face a different mix of felony charges that include statutory rape, violation of civil rights with bodily injury, harassment, stalking and disturbing a school assembly. Three younger girls have been charged in juvenile court, Elizabeth D. Scheibel, the Northwestern district attorney, said at a news conference in Northampton, Mass.

Appearing with state and local police officials on Monday, Ms. Scheibel said that Ms. Prince’s suicide came after nearly three months of severe taunting and physical threats by a cluster of fellow students. “The investigation revealed relentless activities directed toward Phoebe to make it impossible for her to stay at school,” Ms. Scheibel said. The conduct of those charged, she said, “far exceeded the limits of normal teenage relationship-related quarrels.”...

On Jan. 14, the investigation found, students abused her in the school library, the lunchroom and the hallways and threw a canned drink at her as she walked home. Her sister found her hanging from a stairwell at home, still in her school clothes, at 4:30 p.m.

Some of the students plotted against Ms. Prince on the Internet, using social networking sites, but the main abuse was at school, the prosecutor said. “The actions of these students were primarily conducted on school grounds during school hours and while school was in session,” Ms. Scheibel said.

Ms. Scheibel declined to provide details about the charges of statutory rape against two boys, but experts said those charges could mean that the boys had sex with Ms. Prince when she was under age.

Legal experts said they were not aware of other cases in which students faced serious criminal charges for harassing a fellow student, but added that the circumstances in this case appeared to be extreme and that juvenile charges were usually kept private....

A South Hadley parent, Mitch Brouillard, who said his daughter Rebecca had been bullied by one of the girls charged in Ms. Prince’s death, said he was pleased that charges were brought. One of the students was charged separately in a case involving his daughter. “My daughter was bullied for three years, and we continually went to the administration and we really got no satisfaction,” Mr. Brouillard said, adding, “I was offered an apology a few weeks ago that they should have handled it differently.”

Harvey Silverglate, a lawyer in Cambridge, Mass., who has argued that proposed cyberbullying laws are too vague and a threat to free speech, said that he thought the charges announced Monday would pass legal muster. The sorts of acts of harassment and stalking claimed in the charges were wrong under state law, Mr. Silverglate said, but a question would be whether they were serious enough to constitute criminal violations, as opposed to civil ones. “There is a higher threshold of proof of outrageous conduct needed to reach the level of a criminal cause of action, in comparison to the lower level of outrageousness needed to prove a civil violation,” he said.

Sentencing day at the US Supreme Court

This morning the Supreme Court will hear oral argument on two fascinating and important "back end" sentencing cases: Dillon v. US (09-6338) and Barber v. Thomas (09-5201).

Because I was surprised that the Justices now took up the long-simmering issues in these two cases, I am chary about making any predictions about how the arguments will go. But I hope later this week to be able to offer commentary on what various Justices seem to be thinking in these cases. In the meantime, here are terrific previews of the cases from SCOTUSblog:

• Does United States v. Booker apply to resentencing proceedings under 18 U.S.C. 3582(c)(2)?
• Calculation of “good time” sentencing credits

I welcome and encourage reader thoughts about either or both of these cases (especially now that comments seem to be working again).

"Obama backs secrecy for Bush pardon denials"

The title of this post is the headline of this fascinating item posted by Josh Gerstein over at Politico. Here are the details

While President Barack Obama has vowed to operate the most open and transparent administration in history, he does not appear to be seeking any advantage over his predecessor when it comes to letting the sun shine in on decisions about presidential pardons.

In a brief filed Friday in a federal appeals court in Washington, the Obama Administration is fighting for the right to deny a journalist’s request for the names of 9200 individuals denied clemency by President George W. Bush and, by implication, the names of those who may be denied pardons by Obama down the road.

“Pardon and commutation applicants have a substantial privacy interest in nondisclosure of the fact that they have unsuccessfully sought clemency,” the Justice Department wrote in the brief opposing the request by former Washington Post reporter George Lardner Jr. “The substantial privacy interest of the clemency applicants outweighs the negligible public interest in disclosure of their names.”

The odd twist to this case is that while the Justice Department is fighting to keep the list of denied pardon applications secret, it has long confirmed the names of pardon applicants and the status of the applications, including any denial, when asked about specific individuals. However, DOJ contends that disclosing that information about all pending applicants en masse would amount to an unjustified invasion of privacy.

Last July, a district court judge ruled in favor of Lardner and ordered that the list of rejected applicants should be made public. But the Justice Department appealed. “The fact that [the Office of the Pardon Attorney] freely releases the names of unsuccessful clemency applicants to the general public in certain circumstances casts significant doubt on OPA’s claim that its records reflecting this information should be treated as confidential law enforcement records that must be protected,” Judge Colleen Kollar-Kotelly wrote.

However, in its appeal, DOJ argues that ruling was wrong and even suggests that disclosing the list of nixed names could lead to violence against applicants. “Disclosure of the fact that individual offenders have unsuccessfully sought pardons or commutations unquestionably will re-stigmatize the applicants and draw renewed attention to their offenses, thereby harming their prospects for successful rehabilitation and reintegration into the community, as well as possibly subjecting them to the risk of retaliation,” the department wrote....

“The names of unsuccessful applicants, standing alone, reveal virtually nothing about the clemency process and shed no light whatever on the reasons for the denials or the manner in which the pardon and commutation system works…..nor is there any reason to believe that the list would reveal the presence of improper ethnic considerations in the clemency process,” the brief says....

The names of those granted pardons or commutations by presidents have been made public, at least in recent decades, and are posted on the Justice Department website, even though making those decisions public can also embarrass recipients by publicizing a long-ago transgression.

However, there has been no such disclosure during the Obama Administration for a simple reason: after more than 14 months in office, the president has yet to issue a single pardon or commutation.

Is "medical parole" the best way to deal with California's high prison costs?

The question in the title of this post is inspired by this notable new article in the Sacramento Bee, which is headlined "Watchdog proposes medical parole to cut California prison costs."   Here are highlights from the interesting article:

The man in charge of upgrading the quality of health care in California's overcrowded prisons has an idea for taxpayers: medical parole. J. Clark Kelso, the federal court-appointed prison health receiver, suggests that California could stop spending millions of dollars a year if officials could grant parole to a handful of inmates who are comatose or otherwise severely incapacitated.

"I am keenly aware, as are the courts," Kelso said, "that a dollar that we can save in the prison health care program is a dollar that can be spent on other important priorities for the state, such as education, money for children, the elderly, other health care programs."

An aide in Kelso's office said that, conservatively, the prison system could save $213 million over five years by paroling just 32 inmates identified as severely incapacitated.  Twenty-one of those 32 inmates are in nursing facilities or hospitals outside prisons, which requires spending for expensive guard time – including overtime – as well as huge health care costs.

These 21 inmates' average annual health care and guard costs total more than $1.97 million apiece – a total of $41.4 million a year for 21 individuals, said Kelso aide Luis Patiño. "These people are not even capable of realizing they're being punished," Patiño said. "Society becomes the victim, because it's paying the cost."

The 11 other severely incapacitated inmates are inside prison health centers, where their annual medical bills average $114,395 each.  Kelso's office supplied these details after he and Sen. Mark Leno, D-San Francisco, announced March 17 that Leno had introduced a bill to create medical parole.

Leno said 1,300 inmates' health care costs exceed $100,000 a year, and that up to 700 prisoners could qualify for a possible medical parole under his bill.... With medical parole, Leno said, California's prison system would save by transferring medical costs to federal programs and eliminating guard costs.  Prisoners are not eligible to enroll in federally funded Medi-Cal or Medicare, but parolees are.

California legislators passed a proposal similar to Leno's in 2003. Then-Gov. Gray Davis vetoed it, instead signing a bill to allow prison officials to contract space for inmates at non-prison health facilities.  Davis called it "a safer, humanitarian and more cost-efficient alternative to parole." Spokesman Aaron McLear said Gov. Arnold Schwarzenegger had no comment on Leno's draft proposal.  The governor has backed another proposal that would give the University of California control of the prison health care system as a way to cut the costs of treating chronically ill inmates....

But some lawmakers are skeptical.  State Sen. George Runner, R-Lancaster, generally a tough law-and-order legislator, said he thinks "it's an illusion" that such large savings could be achieved with medical parole. "Part of the problem is figuring out who this group is," he said. "If someone is truly vegetative then maybe there is a reason to consider this."...

Leno said his Senate Bill 1399 would apply narrowly to certain inmates who cannot function on their own, including inmates bedridden with end-stage Alzheimer's or on ventilators or feeding tubes.  He cited the example of an inmate with dementia, paralysis and no speech or bladder control whose two years of outside care has cost $350,000 a year, not counting guards.  Another inmate on a ventilator, Leno said, has cost more than $500,000 in the past 18 months.  Medical bills for a third inmate with end-stage cardiac disease and other complications have topped more than $1 million a year, he said.

Runner noted that California already has a "compassionate release" policy for prisoners severely incapacitated or near death.  But such releases are rare....

Susan Howley, director of public policy at the National Center for Victims of Crime, said that, if California allows prison officials to grant medical parole, victims' concerns should be heard in each case.  "It is especially important when you have a situation like this," Howley said, "where budget concerns are driving proposals.  When you say it's because of budgets," she said, "that really rubs victims the wrong way – that justice is too expensive."

Leno said he doesn't want to minimize crime victims' suffering. But legislators are facing tough budget choices, he said, and must find ways to contain prison costs, which are consuming nearly 11 percent of the state general fund. "I, for one," Leno said, "would much rather save the jobs of 35 teachers, rather than continue to incarcerate 10 comatose inmates at a quarter of a million dollars a year."

He said 36 other states have a version of medical parole, including Texas, which is putting about 100 to 170 inmates a year into that status.

Valuable recent reviews of federal prision program realities

I often refer people to Alan Ellis, a past president of NACDL who specializesin prison matters and postconviction remedies, whenever I am asked a hard question about federal prison programs. Alan is a co-author of the Federal Prison Guidebook, and he recently sent me two of his recent writings about federal prison programs for posting here.

Alan's recent article in The Champion concerns the federal RDAP program an is titled "Changes to the BOP Residential Drug Abuse Program."  It can be downloded here: Download Changes_to_the_BOP_RDAP

Alan's recent article in Criminal Justice concerns federal prison medical facilities and is titled "BOP Health Care: What You (and Your Clients) Need to Know."  It can be downlaoded here:  Download ABA- BOP Healthcare 3

Despite three strikes against prosecutors, prosecution of alleged murderer still not out

With my sports brain now turning from March Madness to Opening Day, I could not help but think of a sports metaphor to describe this morning's ruling in the Sixth Circuit habeas case of Girts v. Yanai, No. 08-4592 (6th Cir. Mar. 29, 2010) (available here).  Here is how the the opinion starts:

Petitioner Roberts Girts appeals the district court’s decision not to bar a pending third trial following the state’s failure to retry Petitioner within the time provided by this Court’s conditional grant of a writ of habeas corpus pursuant to 28 U.S.C. § 2254.  Petitioner has twice been convicted of the 1992 murder of his wife.  Both convictions were subsequently overturned based on prosecutorial misconduct. The first conviction was overturned by the state court on direct appeal.  The second conviction was overturned by this Court in Girts v. Yanai, 501 F.3d 743 (6th Cir. 2007).  In that decision, Petitioner was granted a conditional writ of habeas corpus calling for the release of Petitioner from custody if he was not tried within 180 days.  Girts was not tried within 180 days but was released and has subsequently been rearrested for the same murder.  He argues on appeal that a third trial should be barred.  For the following reasons, the district court’s decision not to bar retrial is AFFIRMED.

"Disentangling Child Pornography from Child Sex Abuse"

The title of this post is the headline of this notable new paper now on SSRN from Carissa Byrne Hessick. Here is the abstract:

Recent years have seen a significant increase in the criminal penalties associated with possession of child pornography.  The new severity appears to be premised on arguments that blur the distinction between those who possess images of child pornography and those who sexually abuse children.  In particular, sentences have been increased based on arguments that possession of pornography is equivalent to or worse than child sex abuse, arguments that viewing child pornography increases the risk that an individual will sexually abuse a child, and arguments that those who possess child pornography are abusing children undetected.

This Article identifies instances where possession of child pornography and child sex abuse have been conflated, critically evaluates the arguments that promote such conflation, and identifies independent concerns with conflation. Specifically, it argues that blurring the distinction between the two crimes allows us to continue to misperceive child sex abuse as a stranger-danger issue, and that when law enforcement statistics aggregate possession and child sex abuse, then the public may be misled into believing that law enforcement is successfully battling child sex abuse, when that is not the case.  The Article concludes that the modern trend of increasing sentences for possession of child pornography ought to be reviewed, and it suggests several possible areas of reform.

Details on Dillon as SCOTUS oral argument approaches

Because there is so much that could be said about the crack guideline modification retroactivity issue that goes before the Supreme Court on Tuesday in the Dillon case, I am not sure where to start.  The case directly involves or implicitly raises issues of constitutional law, statutory doctrine, administrative powers and policy-based practicalities, with a splash of Booker and a hint of equity thrown in for good measure.  Helpfully, this new local piece, which is headlined "Cocaine sentencing inequity goes to top court: Supreme Court will hear Percy Dillon's plea for a substantial sentence reduction," reviews some of the basics effectively while also discussing the defendant whose fate will be before SCOTUS on Tuesday. 

"In the Drug War, Drugs Are Winning"

The title of this post is the headline of this notable new commentary by Steve Chapman that a helpful reader sent my way.  Here are excerpts:

Mexico has been wracked by murders connected to the drug trade. Last year, it suffered more than 6,500 drug-related killings, triple the number in 2007. And 2010 looks worse.

This is not an epidemic of crazed meth addicts slaughtering people at random. It's the byproduct of a war involving narcotics traffickers, who sometimes kill each other, sometimes kill police and soldiers, sometimes kill journalists who report their crimes and sometimes kill innocent bystanders.

So what can the Golden State offer in the way of assistance? Something potentially valuable. In November, Californians will vote on a ballot initiative that would make it legal not only to use marijuana but to grow and sell it.

You may think this would help only by allowing Mexicans to flee northward and escape their troubles in a stoner fog. But it would do more. Mexico is the biggest supplier of cannabis to the United States. Control of that market is one of the things that Mexican drug cartels are willing to kill for.

Legalizing weed in this country would be their worst nightmare. Why? Because it would offer Americans a legitimate supply of the stuff. Criminal organizations would no longer be able to demand huge premiums to compensate for the major risks that go with forbidden commerce. If the referendum passes, some 39 million Californians will have access at lower prices, from regulated domestic producers.

 So the drug cartels would see a large share of their profits go up in smoke. Those profits are what enables them to establish sophisticated smuggling operations, buy guns and airplanes, recruit foot soldiers and bribe government officials....

There has always been a demand for mind-altering substances, and there always will be. That's why, despite all the resources the U.S. government has expended on locking up sellers and their customers, drug use is higher today than it was two decades ago.  Prohibition is no match for the obstinacy and ingenuity of many human beings....

President Obama's promise of change is inapplicable in this realm.  The Bush administration provided hundreds of millions of dollars to help Mexico fight the drug war. The Obama administration intends to keep sending money, the only real difference being that it will go to the police instead of the military.

On a recent trip to Mexico City, Secretary of State Hillary Clinton acknowledged that Americans' demand for drugs helps sustain the Mexican merchants and resolved to address the problem. "We are looking at everything that can work," she said.  Well, almost everything.  The most viable option is the one that is considered unthinkable. The head of Obama's Office of National Drug Control Policy has said that "legalization is not in the president's vocabulary, nor is it in mine." No, but failure is.

Not sure why comments are not showing up today....

but I've now reported the problem to the magic tech wizards behind Typepad and hope the problem will resolve itself ASAP.  My sincere appologies for anyone who has tried to post a comment only to see it vanish into cyberspace.

UPDATE:  Here is what the Typepad has now said in response to my inquiries:

We're currently investigating issues with commenting on some blogs. We apologize for the inconvenience -- we know how important commenting is for our bloggers.

Our engineers are working on this and we hope to have this resolved soon -- we will follow up on this ticket as soon as we have more information on this. Additionally we will keep our status page updated with any new information: http://status.sixapart.com

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"Every time a killer is sentenced to die, a school closes"

The title of this post is the provocative first sentence of this effective FoxNews article, which is headlined "Just or Not, Cost of Death Penalty Is a Killer for State Budgets." A subheading of the piece also coins the phrase "death row boondoggles," which I may start using a lot. Here is the subheading and also other excerpts from the piece:

Capital murder trials and death row boondoggles are wreaking havoc on budgets across the country as many states are now rethinking the death penalty, which is enormously costly and rarely imposed even after successful prosecutions....

Forget justice, morality, the possibility of killing an innocent man or any of the traditional arguments that have been part of the public debate over the death penalty. The new one is this: The cost of killing killers is killing us.

"There have been studies of costs of the death penalty before, but we have never seen the same reaction that we are seeing now," says Richard C. Dieter of the non-partisan Death Penalty Information Center. "Perhaps it is because governments are looking for ways to cut costs, and this is easier than school closings or layoffs, but it sure has hit a nerve."

In the last year, four states — Kansas, Colorado, Montana and Connecticut — have wrestled with the emotional and politically charged issue. In each state there was a major shift toward rejection of the death penalty and narrow defeats for legislation that would have abolished it. In Connecticut, both houses actually voted in favor of a bill that would have banned executions, but the governor vetoed it.

Unlike past debates over executions, the current battles are fueled largely by the costs the death penalty imposes on states. The numbers, according to the studies, are staggering....

A Florida study found the state could cut its costs by $51 million simply by eliminating the death penalty. But no state matches the dilemma of California, where almost 700 inmates are sitting on death row and, according to Natasha Minsker, author of a new report by the Northern California chapter of the American Civil Liberties Union, few will ever actually be put to death. In fact, she says, the odds against being executed are so great, murder suspects in California actually seek the death penalty because it is the only way to get a single room in the state's prison system.

"Only 1 percent of people sentenced to death in California in the last 30 years have been executed," Minsker said. "The death penalty in California is purely a symbolic sentence." Her study found that the cash-strapped state could immediately save $1 billion by eliminating the death penalty and imposing sentences of life without parole. The alternative, if the cash-strapped state keeps the death penalty: spend $400 million to build a new death-row prison to house the growing number of prisoners.

Minsker said just keeping prisoners on death row costs $90,000 more per prisoner per year than regular confinement, because the inmates are housed in single rooms and the prisons are staffed with extra guards. That money alone would cut $63 million from the state budget. But other savings would ripple through every step of the criminal justice system as well, from court costs to subsidized spending for defense attorney and investigation expenses.