January 9, 2010
Will any new electronic device be especially blog-friendly?
I am going to go off-topic just a bit to seek reader reflection on whether any of the new and in-development mobile electronic devices seem especially blog-friendly for blog authors and blog readers. I love both my (first-generation) Amazon Kindle and also my new Droid, but neither device makes blog posting easy or enjoyable. And though I can read others' blogs on both devices, I also much prefer blog reading on a traditional PC.
Thus, as I read this new New York Times piece headlined "A Deluge of Devices for Reading and Surfing," I find myself particularly interested and concerned about whether any new form of electronics will be distinctively blog-friendly. Here is the start of the NYT piece:
You’ve heard of Amazon.com’s Kindle. And you probably know that Apple is likely to introduce a tablet computer this year. Soon you may also be hearing about the Alex, the Que proReader and the IdeaPad U1 Hybrid.
Those products are part of a new wave of slender touch-screen tablets and electronic reading devices that dozens of companies, both well known and unknown, brought to the Consumer Electronics Show in Las Vegas this week.
Some of these gadgets allow people to read for long periods of time without eye strain and without killing the batteries. Others focus on allowing their owners to surf the Web, watch video and play casual games without being tethered to a bulky laptop and its traditional keyboard.
“There are a billion and a half Internet users on the planet today, and a lot of them are primarily using it for entertainment and social networking,” said Glen Burchers, director of global consumer segment marketing at Freescale, a chip company hoping to power the new tablets. “The PC does a good job on a lot of things, but it’s just not the ideal device for surfing the Internet or reading.”
Perhaps because I am old and have a status quo bias, I do think it is the case that the PC right now is the best way to both write and read blogs. But perhaps readers have others experiences, and I hope folks will share thoughts on this tech-topic.
"As crime keeps dropping, it’s no time for backsliding"The title of this post is the headline of this notable editorial from yesterday's USA Today. Here are excerpts:
At the beginning of the 1990s violent crime was soaring, and some experts predicted that it would go even higher as a generation of "superpredators" came of age.
When the rate began going down instead, the predictions and explanations continued anyway. One popular theory was that the drop was merely the result of the settling of gang turf wars related to crack cocaine. Another was that crime was heavily influenced by economics, so it would naturally go down at a time of surging growth. As it turned out, the downward trend has continued for nearly 20 years, through good economic times and bad....
At the risk of being humbled by future trends, let us point to a couple of possible explanations, and a note of caution about what lies ahead.
One convincing reason for the crime drop is that incarceration works. In 1990, according to the Justice Department, the U.S. prison population was 773,119. Today the total is about 1.6 million.
Getting repeat violent offenders off the streets and keeping them behind bars longer is sure to have had some significant impact. The most recent long-term study of recidivism by the Justice Department found that 67.5% of the prisoners released in 1994 committed another crime within three years. (The department is studying the class of 2005.) More jail cells and longer sentences reduce the population of released prisoners and push them into an older age group, when they are less likely to be involved in the most violent crimes.
Another credible explanation is that law enforcement officials at all levels of government have been effectively employing community policing, rapid response teams and new technologies.
Despite these positive trends, however, there are reasons for concern. States and localities are under extreme financial duress as the result of a sour economy combined with mandated spending tied to health care and overly generous retiree benefits.
Some are responding by cutting law enforcement and releasing prisoners early. That's shortsighted. There is no more important function of government than public safety. If officials do not take that responsibility seriously, crime will no doubt go back up, reversing one of the truly good news stories of the past two decades.
I think it is appropriate to conclude that mass incarceration has played a role in reduced crime rates, though I also think it is especially important to bring more nuance to the discussion than does this editorial. Incarceration rates began surging in the 1980s, but crime rates kept moving up through the early 1990s. In addition, though society is certainly doing a better job incapacitating repeat violent offenders through longer terms of incarceration, the steady modern increases in incarceration has also involved long prison terms for some non-violent first offenders and the economic costs of mass incarceration has contributed greatly to modern state budget challenges.
That all said, the USA Todayis to be praised for stressing that we must not become complacent in light of our (surprising?) modern success reducing crime rates. As I have said before, researchers and policy-makers should all be working extra hard trying to figure out exactly what has been working in this arena. I am troubled that this editorial suggests there might be easy answer: dynamic and unpredictable social and human realities likely preclude simple solutions. But, aided by nuanced study and unbiased research, policy-makers can and should be able to make educated guesses as to what laws and polices are more likely (and less likely) to continue the positive trends of the last 20 years. And, critically, with modern economic struggles and tight budgets, effectiveness needs to be assessed in light of both general crime reduction and cost-effectiveness for limited taxpayer dollars.
Did federal sentencing of CEO of BetonSports have an over/under?This new Wired story, which is headlined "Online Gambling Boss Gets 33-Month Sentence," accounts for the cheeky title of this post. Here are the details of a sentencing against the backdrop of an interesting public policy debate:
The chief executive of an overseas, online gambling operation was sentenced by a U.S. judge to 33 months imprisonment after pleading guilty to racketeering, the government announced Friday.
David Carruthers, 52, the former executive of BetonSports, was handed the sentence Friday in a St. Louis federal courtroom. The authorities said the British man’s online operations were based in Costa Rica, and violated anti-online gaming laws in the United States.
Carruthers’ plea agreement (.pdf) requires him to cooperate in the government’s investigation into the site, which is one of dozens the United States is targeting following the adoption of the Unlawful Internet Gambling Enforcement Act of 2006 (.pdf). Its intended use was to combat terrorism in a bid to control money laundering.
The sentencing comes as U.S. lawmakers consider allowing internet gambling, and as federal regulators step up enforcement against them. “Illegal internet gaming operations continue to be areas of concern for IRS,” said Toni Weirauch, a special agent with the Internal Revenue Service’s Criminal Investigation. “With our law enforcement partners, IRS will continue to play an enforcement role in the illegal gaming industry and other illegal offshore activity.”
One proposal to repeal the 2006 legislation would license internet gambling and tax it. The measure is stalled in a House committee. The Poker Player’s Alliance supports the legislation, and estimates as many as 10 million Americans wager about $6 billion online annually.
January 8, 2010
SCOTUS grants cert on a (purely technical?) criminal restitution issueAs detailed at this new SCOTUSblog post, the Supreme Court this afternoon "has granted cert. in a single case, Dolan v. United States (09-367)"
Title: Dolan v. United States
Issue: Whether a district court decision to enter a restitution order beyond the ninety-day time limit prescribed in 18 U.S.C. § 3664(d)(5) must be vacated.
As the title of my post highlights, this issue seems to be of mostly technical importance. If, however, the Supreme Court were to endorse an expanded time from for the entering of restitution orders, I suspect a ruling in Dolan could have a significant ripple effect.
First Circuit upholds sex offender civil commitment part of Adam Walsh ActThis coming Monday morning, the Supreme Court is scheduled to hear oral arguments in United States v. Comstock (08-1224), in which the US sought cert to answer this question:
Whether Congress had the constitutional authority to enact 18 U.S.C. 4248, which authorizes court-ordered civil commitment by the federal government of (1) "sexually dangerous" persons who are already in the custody of the Bureau of Prisons, but who are coming to the end of their federal prison sentences, and (2) "sexually dangerous" persons who are in the custody of the Attorney General because they have been found mentally incompetent to stand trial.
Perhaps not coincidentally, the First Circuit has issued an opinion today in US v. Volungus, No. 09-1596 (1st Cir. Jan. 10, 2010) (available here), which seeks to answer this question. Here is how the Volungus opinion starts:
We are called upon to determine the constitutionality of a provision of the Adam Walsh Child Protection and Safety Act (Walsh Act), Pub. L. No. 109-248, 120 Stat. 587 (2006), a recently enacted federal law that provides in pertinent part for the civil commitment of a sexually dangerous person already in federal criminal custody in lieu of that person's release upon service of his full sentence. Id. § 320, 120 Stat. at 619-22, codified at 18 U.S.C. §§ 4241, 4247-4248 (which we shall call, as a shorthand, section 4248). The district court concluded that Congress lacked constitutional authority to enact this civil commitment provision and, therefore, dismissed the government's petition to enforce it against the respondent, John Charles Volungus. United States v. Volungus, 599 F. Supp. 2d 68, 77-78, 80 (D. Mass. 2009). The government appeals from that ruling.
After careful consideration, we hold that the civil commitment provision comes within the legitimate scope of congressional power conferred by the Necessary and Proper Clause of the federal Constitution. Consequently, we reverse the decision below and remand for further proceedings.
New Jersey on verge of repealing state's school-zone drug lawsLegislative action on criminal sentences often appears to be largely a one-way ratchet, with new laws often pushing punishments up and rarely bringing them down. However, as detailed in this local report, New Jersey is about the buck the trend through a repeal of its school-zone drug laws. Here are the details:
People arrested for some drug offenses near schools should no longer face mandatory prison sentences, lawmakers decided today. Assembly members voted 46-30 to send the bill (A2762) to the governor's desk for final approval.
The state has imposed mandatory prison terms of one to three years for people caught dealing drugs within 1,000 feet of a school since 1987. “The mandatory minimum sentencing the zones require has effectively created two different sentences for the same crime, depending on where an individual lives," Assemblywoman Bonnie Watson Coleman (D-Mercer) said in a statement. "This is geographic discrimination at its most basic."
Supporters of the bill say those sentences have unnecessarily stuffed New Jersey prisons with nonviolent offenders who deserve probation or access to drug treatment programs. Almost 70 percent of the 6,720 drug offenders serving time in state prisons have mandatory minimum sentences, according to the Department of Corrections.
The bill passed yesterday would allow judges to reduce the required minimum sentence or impose probation, depending on whether the offense occurred when school was in session, its proximity to school grounds, and if children were present. Sentences could not be reduced if the offense took place on school grounds or if it involved violence or a gun.
In addition, the bill will allow current inmates to appeal the mandatory minimum sentences they’ve already received. “This is a progressive solution to a complex problem,” Assemblyman Gordon Johnson (D-Bergen) said in a statement.
I know a lot of folks have worked long and hard to get this legislative change through, and those folks merit great credit for helping the legislature work toward a more nuanced solution to a complex problem.
Some related posts (which go back more than four years):
A new thoughtful child porn downloading opinion assailing images guideline enhancement
I just came across a recent district court opinion discussing the federal guidelines for child porn that has an especially astute discussion of one significant aspect of the enhancements regularly applied in these sorts of cases. The opinion is authored by Chief Judge Joseph Goodwin in US v. Raby, 2:05-cr-3 (S.D. W. Va. Dec. 30, 2009) (available here), and the full opinion is a must-read. But this passage in particular adds nuance and insight to criticism of how the federal sentencing guidelines operate in child porn possession cases:
Basic economics justifies criminalizing the consumption of child pornography. Unable to eliminate the supply of these horrible images, we prosecute consumers to lower demand. Although each individual offender’s child-pornography collection may have little or no effect on the worldwide market, viewed in the aggregate, the impact is significant.
But this market-based justification does not support the number-of-images enhancement in section 2G2.2(b)(7). The worldwide market for child pornography is so vast that the the relative market impact of an having even 592 additional images is miniscule. Yet, in this case, the five-level number-of-images enhancement alone raised Mr. Raby’s advisory Guidelines sentence from 121 to151 months in prison to 210 to 262 months, effectively doubling his sentence. The de minimis market effect of a few hundred images simply does not justify sentencing a man to additional decade in prison. While the size of Mr. Raby’s child-pornography collection is certainly a part of the nature and circumstances of his offense, adhering to this rigid calculus in this case would be unjust and would ignore the mandate of § 3553(a).
Some related recent federal child porn prosecution and sentencing posts:
- Can downloading of child porn be blamed on post-traumatic stress disorder?
- "Federal judges argue for reduced sentences for child-porn convicts"
- Effective local reporting on realities and debates surrounding federal sentencing guidelines for child porn
- "Prosecutors seek nearly $200k for child porn victim"
- More examples of sentencing uncertainty surrounding federal child porn cases
Three executions completed on January 7, 2010
I am not sure if this fact marks a record for the modern administration of the death penalty in the US, but I am sure that it is noteworthy that three different states succeeded in carrying out executions yesterday. Here are links to stories covering each execution:
- "Louisiana executes first inmate since 2002"
- "Ohio executes second inmate using single-drug method"
- "Cop Killer Put to Death in Texas' First Execution of Year"
For a host of reasons, I doubt there have been any single days with four executions in four states, so I think yesterday had to at least tie a modern executions record [added: I was wrong, see below]. I also doubt there will be any days in the near future with four (or even three) executions, so January 7, 2010, likely can be remembers as a special day in the history of the US death penalty. And yet, despite all the attention that the death penalty often gets from the media and public policy groups, I have yet to see anyone else noting yesterday's historic nature.
UPDATE: In the comments, federalist asserts that on December 9, 1998 there were four executions in four states. But the execution database at DPIC, which I have always assumed to be fairly accurate, records no executions on 12/09/98. The DPIC database does report five executions in the prior week (two in Texas, two in South Carolina, and one in Virginia), and five executions in the days that follow (one in Texas, two in Oklahoma, and two in South Carolina). Thus, while the first few weeks of December 1998 saw a total of 10 executions in four states, it does not appear according to the DPIC's database that a record for most execution in one day was set during that period.
Another UPDATE: In the comments, federalist now clarifies that it was December 9, 1999 on which there were four executions in four states. And, sure enough, a quick check of the execution database at DPIC, shows that Indiana, Oklahoma, Virginia and Texas all completed lethal injections that day. Kudos to federalist for knowing this bit of trivia; I should have thought to check out the list of 1999 executions because that year, with 98 executions, set the modern US record for most executions in a single year.
"Fifty State Survey of Adult Sex Offender Registration Laws"The title of this post is the title of this helpful document available here via SSRN. Here is the abstract:
This publication is part of a larger scholarly project and one in a series that aims to create a “legal toolkit” for addressing sexual violence in custody. This chart catalogues statutes that address adult sex offender registration requirements in all fifty states, as well as surrounding territories. This chart provides a list of all registrable offenses; indicates whether sex offender registration is required for staff sexual misconduct; details the type of information maintained in the sex offender registry, community notification and other websites; identifies limitations on residency or employment; and identifies the duration of registration.
January 7, 2010
Plaxico Burress denied opportunity to participate in NY work release programThis news report from NYC, which is headlined "Plaxico Burress Denied Work Release," details that Plaxico Burress continues to get tough treatment from the New York legal system. Here are the basic details:
Plaxico Burress is not getting out of prison just yet. The work-release application for the ex-Giants star was denied by the New York Department of Correctional Services because of the nature of his crime. Burress pleaded guilty in August to attempted criminal possession of a weapon for having a loaded handgun in a nightclub that went off and shot him in the leg.
"At no time did you report this incident to local law enforcement. As such, it is determined that you must serve a greater portion of your sentence prior to consideration for potential participation in the temporary release program," the ruling said.
The program would have allowed him to spend some portion of his two-year sentence at home. The announcement was made Thursday. Burress applied for the furlough Nov. 25, about two months into his sentence. Though he had no prior record, the decision wasn't a surprise; less than 5 percent of the more than 31,500 work-release applications in 2008 were granted.
Burress can appeal, and may also reapply for work release in six months. His attorney, Benjamin Brafman, declined to comment....
Manhattan Chief Assistant District Attorney Mark Dwyer said a quick furlough would send a bad message. The district attorney's office did not immediately comment Thursday on the application denial.
Ohio succeeds again with one-drug execution protocol
The Columbus Dispatch provides this report on another execution in Ohio using the state's new one-drug lethal injection protocol. Here is how it starts:
A Toledo man convicted of fatally shooting a convenience-store owner in 1993 this morning became the second person in the U.S. to be put to death using a single drug. Vernon Smith, 37, was pronounced dead at 10:28 after Lucasville prison staff administered a fatal dose of thiopental sodium, a powerful anesthetic.
He was the second death-row inmate to be put to death with a single drug after Ohio switched from a three-drug system in November. The change came after a botched execution attempt in October. "I'm sure there are plenty of people across the country who are watching what we're doing today," said state prisons director Terry Collins before the execution.
Two notable (and notably different) Second Circuit reversals on sex offender issuesThe Second Circuit has two notable rulings in sex offender cases today. Here are the basics, with summaries drawn from the rulings:
US v. Guzman, No. 08-5561 (2d Cir. Jan. 7, 2010) (available here):
Appeals from orders of the United States District Court for the Northern District of New York (Hurd, J.), entered on (1) September 23, 2008, dismissing the indictment in United States v. Hall; (2) October 17, 2008, dismissing the superseding indictment in United States v. Guzman; and (3) December 4, 2008, denying the government’s motion for reconsideration in United States v. Hall. The basis for each order was that the requirement of the Sex Offender Registration and Notification Act that Appellees register as convicted sex offenders and keep their registrations up to date, 42 U.S.C. § 16913, exceeds congressional power under the Commerce Clause. The district court rejected all of Appellees’ other arguments in support of dismissal. REVERSED and REMANDED.
US v. Reeves , No. 08-2966 (2d Cir. Jan. 7, 2010) (available here):
Appeal from a sentence imposing a condition of supervised release requiring Defendant to notify the Probation Department upon his entry into a significant romantic relationship and to inform the other party of his offense of conviction. We conclude that the release condition is unduly vague and not reasonably related to the goals of sentencing. VACATED and REMANDED.
I found this paragraph from the Reevesruling especially astute and amusing:
We easily conclude that people of common intelligence (or, for that matter, of high intelligence) would find it impossible to agree on the proper application of a release condition triggered by entry into a “significant romantic relationship.” What makes a relationship “romantic,” let alone “significant” in its romantic depth, can be the subject of endless debate that varies across generations, regions, and genders. For some, it would involve the exchange of gifts such as flowers or chocolates; for others, it would depend on acts of physical intimacy; and for still others, all of these elements could be present yet the relationship, without a promise of exclusivity, would not be “significant.” The history of romance is replete with precisely these blurred lines and misunderstandings. See, e.g., Wolfgang Amadeus Mozart, The Marriage of Figaro (1786); Jane Austen, Mansfield Park (Thomas Egerton, 1814); When Harry Met Sally (Columbia Pictures 1989); He’s Just Not That Into You (Flower Films 2009).
I will leave it to others with more refined historic artistic sensibilities to decide whether Mozart and Austen would be aghast or pleased to now appear in a string cite with He’s Just Not That Into You.
"Study says Texas death penalty a homicide deterrent"The title of this post is the headline of this new AP article. Here is how it starts:
As many as 60 people may be alive today in Texas because two dozen convicted killers were executed last year in the nation's most active capital punishment state, according to a study of death penalty deterrence by researchers from Sam Houston State University and Duke University.
A review of executions and homicides in Texas by criminologist Raymond Teske at Sam Houston in Huntsville and Duke sociologists Kenneth Land and Hui Zheng concludes a monthly decline of between 0.5 to 2.5 homicides in Texas follows each execution. “Evidence exists of modest, short-term reductions in the numbers of homicides in Texas in the month of or after executions,” the study published in a recent issue of Criminology, a journal of the American Society of Criminology, said.
The study adds to decades of academic dissection of the death penalty and deterrence. Results over the years vary from capital punishment saving more lives than suggested in this study to no conclusive effect.
This study, however, is the first to focus on monthly data in Texas, where researchers said the number of executions — 447 since capital punishment resumed in 1982 — is statistically significant enough “to make possible relatively stable estimates of the homicide response to executions.” A national deterrent effect can't be determined because “most states ... have not engaged in a sufficient level or frequency of executions per year,” they said.
Kent Scheidegger, legal director of the California-based Criminal Justice Legal Foundation, which supports capital punishment, said the study “would be sufficient by itself to justify the death penalty.”
California Gov. Arnold Schwarzenegger talking about linking education and prison fundingAs detailed in this local report, which is headlined "Educators intrigued by proposal to link college, prison spending," a key part of Gov. Arnold Schwarzenegger's state-of-the-state address focused on the relationship between state funding of education and prisons. Here are the basics:
University leaders on Wednesday lauded Gov. Arnold Schwarzenegger's plan to shift state money from prisons to higher education, but some experts warned the proposal is just bad budgeting.
In his State of the State address, Schwarzenegger proposed a constitutional amendment that would guarantee at least 10 percent of the California budget for the University of California and California State University systems, gradually scaling back prison funding to reach that number. Both university systems have raised student fees more than 30 percent in the past year while limiting access because of deep budget cuts.
About 7.5 percent of the state general fund is now devoted to the universities, the governor said, far less than the 13.4 percent they received in 1967. Almost 11 percent of the state's $90 billion budget is dedicated to prisons, Schwarzenegger said. Data from the nonpartisan Legislative Analyst's Office show slightly different figures: 9.6 percent for prisons and 5.9 percent for universities.
Education leaders -- and even some critics -- called the plan to shore up the suffering schools "bold" and "visionary." But some said the proposal would be another sign of the state's bad habit of tying its hands when it comes to the budget.
UPDATE: I just found this one-page release from Gov. Schwarzenegger's office which is titled "Reshaping Our Priorities To Shift Funding From Prisons To Universities." It starts with this quote from the Governor's state of the state speech:
Spending 45 percent more on prisons than universities is no way to proceed into the future. What does it say about a state that focuses more on prison uniforms than caps and gowns? It simply is not healthy. I will submit to you a constitutional amendment so that never again do we spend a greater percentage of our money on prisons than on higher education.
I am eager to give the Terminator lots of credit for his focus and rhetoric on these matters, though I fear that it is coming a day late and lots of dollars short. Excessive and poorly coordinated spending on prisons has been a major problem for the entirety of Gov. Schwarzenegger's time in office, but only now during his last year in office is he talking the talk --- and perhaps only now because he is forced to start walking the walk due to a looming prison-reduction court order looming and on-going protests about cuts in higher education funding.
January 6, 2010
Roman Polanski asking to be sentenced in absentiaAs detailed in this new Reuters report, the Roman Polanski case has taken another interesting turn:
Fugitive film director Roman Polanski asked a Los Angeles judge on Wednesday to sentence him in his absence on a 1977 charge of having sex with a 13-year-old girl. Judge Peter Espinoza set a January 22 date for a full hearing on the request, made by Polanski in a notarized document signed December 26 in Switzerland and submitted by the Oscar-winning director's Los Angeles-based lawyer, Chad Hummel.
But prosecutors, who have long sought to bring Polanski back to Los Angeles, said they would oppose any bid to sentence him until he turns up physically in court.
Polanski, 76, who won an Oscar in 2002 for "The Pianist", is under house arrest at his villa in the ski resort of Gstaad, Switzerland, fighting extradition to the United States. He was arrested in Switzerland in September on a U.S. warrant.
He fled the United States in 1978 after pleading guilty to unlawful sex with a minor. Polanski has said he feared the judge in the case, who has since died, was going to renege on an agreement to sentence him to the 42 days he had already served behind bars.
The dual Polish-French national has spent most of the past 30 years living and working in France, which has no extradition treaty with the United States covering the crime.
Wednesday's hearing followed a suggestion by a California appeals court last month that sentencing Polanski in absentia could be one way to resolve the decades-long battle to bring him to justice. But prosecutor David Walgren said Polanski should come back to California and not continue to fight the case "from the comfort of his Swiss chalet in the Alps."
Swiss authorities have said they will make a decision on extradition in early 2010. A California appeals court in December denied Polanski's bid to have the unlawful sex case dismissed due to alleged judicial misconduct. But the appellate panel said the misconduct allegations were "extremely serious" and should be investigated.
Effective NPR discussion of plea bargaining realities
This afternoon's NPR program "Talk of the Nation" included this lengthy segment on plea bargaining under the title "Plea Bargains: Necessary Tool, Or Cop-Out?". Here is set up:
Most criminal convictions are the result of plea bargaining, a process of negotiations between prosecutors and defense attorneys. Critics argue that criminal defendants can get off too lightly, and defendants say they're often pressured into accepting deals.
In addition to effective presentations by the two law prof guests, diverse plea bargaining stories told by the callers to the show make the segment especially worth a listen.
Will any Second Amendment fans come to the defense of Gilbert Arenas?
Though I doubt the NRA is likely eager to make Gilbert Arenas its celebrity spokesman, the latest news concerning the treatment of the NBA star has me wondering if and when fans of guns rights and the Second Amendment might start speaking out on Arenas' behalf. Here is what's new via NBA.com:
The NBA on Wednesday suspended Washington Wizards guard Gilbert Arenas indefinitely, without pay, in the wake of both a Dec. 21 incident at Verizon Center --when Arenas brought four guns into the team's locker room, in a supposed joke gone badly with teammate Javaris Crittenton following an argument between the two on the team's plane two days earlier -- and Arenas' subsequent conduct, including a pregame routine Tuesday night before Washington's game in Philadelphia in which Arenas pretended to "shoot" his teammates with his fingers.
NBA commissioner David Stern said in a statement that Arenas' ongoing conduct "has led me to conclude that he is not currently fit to take the court in an NBA game. Accordingly, I am suspending Mr. Arenas indefinitely, without pay, effective immediately pending the completion of the investigation by the NBA."...
Stern added that when the legal investigation is over, Arenas faces "a substantial suspension, and perhaps worse" from the league. That would seem to indicate that the league is at least leaving open the possibility of terminating Arenas from the league. That would free the Wizards from the remainder of Arenas' $111 million contract, signed in 2008, which has four years remaining.
As I have suggested in a prior post, these actions by the NBA call for experts in labor and sports law, not criminal law. Still, if Stern is taking this so seriously, I have to wonder what law enforcement has in mind. And, as suggested by the title of this post, I think any serious fan of gun rights and the Second Amendment has to question why Arenas seems to be getting treated so harshly just for possessing unloaded guns.
Some related posts on Gilber Arenas' situation and other celebrity gun possession cases:
- Starting to make the Second Amendment case for Plaxico Buress
- Now that Plaxico Burress has been formally indicted for gun possession, will Second Amendment fans come to his defense?
- Why Second Amendment supporters need to be helping out Plaxico Burress
- "In U.S., Record-Low Support for Stricter Gun Laws"
- Rapper Lil Wayne cops a plea to New York gun possession charge
"Paratrooper with felony pardoned to join NYPD"
A helpful reader forwarded to me this interesting article with the headline that is in the title of this post. Here are the details:
A decorated paratrooper whose felony gun conviction barred him from his dream of becoming a New York City police officer has been granted a pardon by New York State’s Gov. David Paterson.
Spc. Osvaldo Hernandez will be free to become a police officer with the city police department or pursue another career in law enforcement after he returns from active duty in January, according to a press release from the governor’s office.
“This is the beginning for me ... not the end,” Hernandez, 27, of the 82nd Airborne Division, said in a statement. “I will try to live up to the faith placed in me in all that I do as an infantryman when my unit deploys to Afghanistan, and when I return home.”
Hernandez thanked Paterson “for giving me my life back,” and he said he owes a “lifelong debt” to Army Vice Chief of Staff Gen. Peter Chiarelli, who, among others, wrote a letter of support for Hernandez’s 100-page pardon application....
On Nov. 22, 2002, Hernandez was pulled over and arrested in his native Queens for having an unlicensed loaded gun in his car. Then 20 years old, he pleaded guilty and was sentenced to one year in prison.
After his release, Hernandez made good on a promise to prosecutors that he enlist. He volunteered for the infantry, completed paratrooper training and deployed to Afghanistan in February 2007, where he served 15 months.
Over the course of his service, Hernandez trained Ukrainian paratroopers and cadets at West Point and eventually trained Afghan National Police in Ghazni Province. He was awarded a Combat Infantryman Badge, two Army Commendation Medals and three Army Achievement Medals.
The Army discharged him in June 2008, and in January 2009, Hernandez scored a 98 on the New York City Police Department exam. However, the department’s blanket policy barring felons kept him out.
Hernandez had gotten help from attorney James Harmon Jr., a former prosecutor who served in Vietnam, and from Randy Jergenson, a former city homicide detective who served as a paratrooper in Korea.
Might California get back to executions before the end of 2010?The state of California, which has the largest state death row by far, has been mired in litigation over its lethal injection protocol for nearly four years. But this new Los Angeles Times piece, which is headlined "California proposes new lethal injection procedures," suggests the state might get its death chamber up and running before the end of 2010:
State corrections officials Tuesday proposed new lethal injection procedures, a first step toward resuming executions in California after a four-year halt.
The proposals involve only minor changes to the three-drug method used on 11 of the 13 men put to death in the state since capital punishment was reinstated in 1976. But the revisions appear to address the concerns of a federal judge who deemed the previous lethal injection practices unconstitutional for their risk of inflicting cruel and unusual punishment.
The California Department of Corrections and Rehabilitation issued the proposed changes in a 25-page draft and announced a 15-day period for public comment. Once any additional revisions are made and the new protocols adopted, the execution procedures must pass judicial review for their conformance with state law and the U.S. Constitution.
California has the nation's largest death row, with 697 inmates sentenced to die. The last execution was in January 2006, when convicted killer Clarence Allen was put to death by lethal injection at San Quentin State Prison. When murderer Michael A. Morales was scheduled to die a month later, U.S. District Judge Jeremy Fogel of San Jose intervened to impose conditions that led to the current moratorium....
Gov. Arnold Schwarzenegger convened a task force in 2007 to revise the lethal injection procedures to ensure they were administered effectively. But those changes were adopted behind closed doors and without public input, prompting Marin County Superior Court Judge Lynn O'Malley Taylor to rule them illegal and in violation of the state's Administrative Procedures Act....
Once corrections officials formally adopt the protocols and the state Office of Administrative Law approves them, Taylor and Fogel will evaluate them for compliance with state and federal law. Experts predict that the legal reviews will take months, but that executions could resume as soon as this year if the changes put to rest the judges' concerns.
Given the fact that it has taken California four years to get this far, I would be very surprised if the state succeeds in conducting executions in 2010. But, as Ohio's recent experience shows, if and when state officials are truly motivated to keep a death chamber humming, a lot can get done in a pretty short period of time.
Off to war, rather than prison, for military marriage scammerA helpful reader sent me this notable local sentencing story, which is headlined "After marriage fraud, soldier will serve in Afghanistan, not in prison." Here are the basics:
A former Fort Bragg soldier who married a Russian woman in order to get her into the United States and claim higher benefits for himself was sentenced to probation Monday for the fraud.
Robert L. Cooper, lawyer for Stephen Schneider, argued that his client has been recalled to military service in Afghanistan and could only do so if he was not serving time. The judge agreed and sentenced Schneider to five years probation.
Schneider pleaded guilty in December to conspiracy to commit marriage fraud. Authorities said Schneider and another man, Sgt. Wesly Farris, 23, each married Russian women in order to get higher pay and move off post. After a civil ceremony, the women returned to New York, while the soldiers filed immigration papers for the women and personal requests for increased living allowances from the Army, authorities said.
"Can Congress Overturn Kennedy v. Louisiana?"The question in the title of this post is part of the title of this interesting new piece on SSRN by Richard Re. The full title is "Can Congress Overturn Kennedy v. Louisiana? The Contingency of Recent Eighth Amendment Jurisprudence," and here is the abstract:
As recently illustrated by Kennedy v. Louisiana, the Supreme Court regularly interprets the Eighth Amendment based on the perceived existence of “national consensus.” While this practice has been the topic of extensive commentary and criticism, the existing debate has overlooked the most natural implication of the Court’s consensus-based argumentation – namely, the possibility that recent Eighth Amendment jurisprudence is subject to federal legislative override. This Article argues from existing case law that Kennedy should be susceptible to democratic correction via countervailing federal legislation. Such legislation would demonstrate that no “national consensus” supports the Court’s holding, thereby suggesting that the punishment in question does not actually violate the Eighth Amendment.
One might respond that Kennedy would have found a constitutional violation based on the Court’s “independent judgment,” regardless of whether a supportive national consensus existed. But even assuming that is true, federal legislation could address the concerns that underlie the Court’s independent judgment analysis. Either way, Kennedy’s contingent reasoning would permit at least some correction by the democratic branches. Exploring these possibilities allows us to better understand and justify recent Eighth Amendment jurisprudence, as well as recent substantive due process cases like Lawrence v. Texas that also look to state and federal practice as sources of constitutional law. Ultimately, though, the most important consequence of appreciating Kennedy's democratic reversibility has more to do with the President than with the professoriate. As a candidate for President, Barack Obama pointedly criticized Kennedy’s holding. If this Article is correct, then the President and Congress now have an opportunity to engage the Court in a dialogue regarding the Eighth Amendment’s contemporary practical meaning.
Cranky convicted corporate cooperator complaining about prosecutorsThis Bloomberg report, which is headlined "Ex-UBS Banker, Informant Birkenfeld Seeks Probe of Prosecutors," provides the latest news on a white-collar case that has the feds and their corporate cooperator in a fight. Here are the details:
Bradley Birkenfeld, a key informant in a U.S. investigation of offshore tax evasion aided by UBS AG, claimed in a complaint that federal prosecutors made false statements to a judge who sentenced him to 40 months in prison.
Lawyers for Birkenfeld, a former UBS banker, claimed prosecutors made “inaccurate, misleading and incomplete” statements about him at his Aug. 21 sentencing hearing and in an interview on CBS Corp.’s 60 Minutes television show aired Jan. 3. Birkenfeld, 44, must report to prison on Jan. 8 and can’t extend his surrender date as he requested, a judge ruled Jan. 4.
Birkenfeld asked for an internal probe in a letter yesterday to U.S. Attorney General Eric Holder and the Justice Department’s Office of Professional Responsibility, which investigates allegations of attorney misconduct. Birkenfeld began telling U.S. authorities in 2007 how UBS helped Americans hide assets in secret Swiss accounts. He pleaded guilty in 2008 to helping California billionaire Igor Olenicoff and others evade taxes.
“It is one thing to hold Mr. Birkenfeld accountable for wrongdoing,” Birkenfeld’s lawyers wrote. “It is another thing altogether to imprison Mr. Birkenfeld on false information, especially when he is treated far more harshly than the wrongdoers who actually profited from the illegal tax schemes that Mr. Birkenfeld disclosed.”
Justice Department spokeswoman Tracy Schmaler said in a statement that Birkenfeld pleaded guilty to conspiracy to defraud the U.S. and admitted criminal wrongdoing. “At his sentencing in August, Mr. Birkenfeld made arguments for leniency,” Schmaler said. “In a motion filed in December, Mr. Birkenfeld requested a resentencing hearing citing the same issues raised in his letter to the Justice Department Office of Professional Responsibility. After consideration of these issues, that request was denied by a federal judge.”...
At his sentencing hearing in federal court in Fort Lauderdale, Florida, Justice Department prosecutor Kevin Downing said the U.S. couldn’t have unraveled the bank’s “massive tax fraud scheme” without Birkenfeld’s cooperation. Downing also recommended a 30-month term for Birkenfeld, saying he wasn’t initially truthful about Olenicoff. U.S. District Judge William Zloch, who could have imposed as many as five years, instead gave Birkenfeld a term of three years and four months.
Olenicoff, who pleaded guilty in 2007 to filing a false tax return, got two years’ probation and paid $52 million in back taxes, fines and penalties. Last year, six former UBS clients pleaded guilty....
The letter was sent yesterday by attorneys Stephen Kohn and Dean Zerbe of the National Whistleblowers Center in Washington.
"Juvenile Injustice"The title of this post is the headline of this editorial in today's New York Times. Here are excerpts:
Gladys Carrión, New York’s reform-minded commissioner of the Office of Children and Family Services, has been calling on the state to close many of its remote, prison-style juvenile facilities and shift resources and children to therapeutic programs located in their communities. Her efforts have met fierce and predictably self-interested resistance from the unions representing workers in juvenile prisons and their allies in Albany.
A recent series of damning reports have underscored the flaws in New York’s juvenile justice system and the urgent need to shut down these facilities. The governor and the State Legislature need to pay attention....
Not surprisingly, these institutions do a terrible job of rehabilitation. According to a study of children released from custody between 1991 and 1995, 89 percent of the boys and 81 percent of the girls were eventually rearrested. New York’s facilities are so disastrous and inhumane that state officials recently asked the courts to refrain from sending children to them, except in cases in which they presented a clear danger to the public.
Mr. Paterson’s task force was rightly impressed with Missouri’s juvenile justice system. It has adopted smaller regional facilities that focus on rehabilitation and house troubled youths as close to home as possible in order to involve parents and community groups in the therapeutic process. Missouri also has cut recidivisim rates by smoothing re-entry and helping young people with drug treatment, education or job placement.
New York clearly needs to follow Ms. Carrión’s advice and adopt a Missouri-style system. That means the Legislature will finally have to put the needs of the state’s children ahead of the politically powerful unions and upstate lawmakers who want to preserve jobs — and the disastrous status quo — at all costs.
January 5, 2010
Quite a death penalty start: many executions scheduled to kick off 2010
As detailed on this upcoming executions page at the Death Penalty Information Center, the new year and the new decade is due to get off to a fast and potent start when it comes to executions. Specifically, three defendants are right now scheduled to be executed in three different states on Thursday, January 7. And because the three states in which these executions are scheduled — Louisiana, Ohio and Texas — are not strangers to the death penalty, there is likely a good chance that none of the executions will be stayed.In addition, South Carolina has an execution scheduled for January 8, and both Oklahoma and Texas have additional executions slated for next week. If all these executions go forward, 2010 will start on a record pace for the total number of executions in a calender year in the United States. It appears, however, that only about a half-dozen executions are currently scheduled for the rest of the winter. Thus, it is much too early to predict if 2010 will mark a year in which the the number of executions came roaring back to life.
Split Ninth Circuit panel finds Washington's disenfranchisement of felons violates the VRAIn a ruling that surely will not be the last word on the topic, a split Ninth Circuit panel today in Farrakhan v. Gregoire, No. 06-35669 (9th Cir. Jan. 5, 2010) (available here), has decided that Washington's felon disenfranchisement law violates the federal Voting Rights Act. Here is how the majority opinion starts:
Plaintiffs, minority citizens of Washington state who have lost their right to vote pursuant to the state’s felon disenfranchisement provision, filed this action in 1996 challenging that provision on the ground that, due to racial discrimination in the state’s criminal justice system, the automatic disenfranchisement of felons results in the denial of the right to voteon account of race, in violation of § 2 of the Voting Rights Act (“VRA”), 42 U.S.C. § 1973. We earlier reversed the district court’s grant of summary judgment to Defendants. See Farrakhan v. Washington, 338 F.3d 1009 (9th Cir. 2003), cert. denied, 543 U.S. 984 (2004) (“Farrakhan I”). On remand, the district court again granted summary judgment to Defendants. Plaintiffs timely appeal. We reverse and grant summary judgment to Plaintiffs.Here is how the dissenting opinion in Farrakhan gets going:
In granting summary judgment to plaintiffs, the majority has charted territory that none of our sister circuits has dared to explore. The First, Second, and Eleventh Circuits have determined that vote denial challenges to felon disenfranchisement laws are not cognizable under the Voting Rights Act. See Simmons v. Galvin, 575 F.3d 24 (1st Cir. 2009); Hayden v. Pataki, 449 F.3d 305 (2d Cir. 2006) (en banc); Johnson v. Governor of State of Fla., 405 F.3d 1214 (11th Cir. 2005) (en banc). That preliminary question was settled by our circuit in Farrakhan v. Washington, 338 F.3d 1009 (9th Cir. 2003) (“Farrakhan I”). While I believe that the felon disenfranchisement challenge is not a comfortable fit within the Voting Rights Act, I do not dispute the continuing validity of Farrakhan I. The wisdom of Farrakhan I is not within the purview of the panel to reconsider here. See Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc) (holding that prior circuit authority is binding on three-judge panels unless “clearly irreconcilable with the reasoning or theory of intervening higher authority”). However, in part because the holding of Farrakhan I places us in a crowd of one amongst the circuits, I believe we should be particularly mindful before reversing the district court and invalidating felon disenfranchisement in the State of Washington. The majority has failed to act with appropriate caution. I respectfully dissent.
I feel confident predicting that this notable and important ruling will be subject to en banc review by the Ninth Circuit and/or to Supreme Court review (assuming the state of Washington seeks review). Among interesting story lines to watch as this case goes forward is whether and how the Solicitor General of the United States might get involved.
Federal judge demands federal prosecutors to address restitution issues in child porn casesA helpful reader alerted me to this local story reporting on a notable and important twist in the developing debate over whether children pictured in child porn can get awards of restitution from those who download these pictures. The story is headlined, "Federal judge asks prosecutors to put a price on child porn," and here is how it starts:
She goes by the name of "Amy," and the photos her uncle took of her a decade ago -- when she was 8 or 9 years old -- are among the most widely circulated series of child pornography images in the United States.
Now her fight for damages from those who possess or distribute those photos is emerging as a big issue in federal courtrooms across the country. Including here. The question is: How much can one offender possessing any of the millions of images circulating on the Internet be expected to pay to any of the thousands of victims worldwide? Amy is seeking a total of more than $3.3 million.
On Monday, Judge Patrick Schiltz in U.S. District Court in St. Paul issued an order demanding to know why restitution was not even requested by the U.S. attorney's office in the case of a Minnesota man who pleaded guilty to possession of child pornography. Schiltz said Congress has made it clear that restitution for child porn victims must be considered.
A request for restitution for a victim in a case here -- probably Amy -- was included in the pre-sentence report for Brandon Anthony Buchanan. Yet, in Buchanan's case, as well as in a number of other local child porn cases, Schiltz said that the U.S. attorney's office has been mute on the issue of restitution.
"The Court will no longer accept silence," Schiltz said in his order filed Monday. He said the U.S. attorney must submit a memorandum by Jan. 29 explaining why the victim is not entitled to restitution. Schiltz said he could not talk about the case because it is ongoing. Neither can the U.S. attorney's office, said a spokeswoman.
When asked about the issue of restitution in child pornography cases, First Assistant U.S. Attorney John Marti said: "This is an emerging issue and one we are looking at very closely. We will seek restitution in those cases where we believe it is appropriate and authorized by law."
Some related recent federal child porn prosecution and sentencing posts:
UPDATE: I see that Paul Cassell over at Volokh is here discussing Judge Schiltz's order, and provide this link. Paul has this take on the debates concerning restitutions for the victims of child porn:
The issue of restitution in child pornography cases is an interesting and important one that seems destined to ultimately go to the U.S. Supreme Court. My own view is that Congress drafted a very broad restitution statute designed to give the maximum possible recovery to victims of child pornography. Moreover, if any doubt existed about how to interpret this remedial statute, it should be resolved in favor of the innocent victims of these offenses rather than the criminals who continue to cause injury by illegally possessing the pictures in question.
"Do Standards of Review Matter? The Case of Federal Criminal Sentencing"The title of this post is the title of this interesting empirical article by Max Schanzenbach and Joshua Fischman available here via SSRN. Here is the abstract:
We exploit changes in sentencing doctrine over the last eighteen years to examine the interplay of judicial ideology, standards of review, and the United States Sentencing Guidelines. We find substantial differences in sentencing practices among district judges along two lines: whether judges were appointed by Republican or Democratic presidents, and whether judges joined the federal bench before the Guidelines. Democrats and judges appointed prior to the Guidelines’ adoption depart more from the Sentencing Guidelines and give lower sentences. However, the differences between Republicans and Democrats increase substantially as the standard of review becomes more deferential. On the other hand, we find that judges appointed before the Guidelines were adopted are significantly less responsive to changes in the standard of review. Our results have broad implications for the study of judicial behavior by showing that district judges respond to standards of review and that aversion to reversal acts as a substantial constraint on sentencing decisions. However, the unresponsiveness of judges appointed prior to the Guidelines suggests that this constraint does not operate uniformly, but rather varies with a judge’s respect for the underlying legal regime.
NBA star Arenas might discover that jokes with guns can lead to jail time
This new piece from the Los Angeles Times provides the latest news concerning the holiday brush with the law for NBA star Gilbert Arenas:
Washington Wizards star Gilbert Arenas says he took unloaded guns from his locker in a "misguided effort to play a joke" on a teammate. Arenas released a written statement Monday after meeting with law enforcement officials. Arenas' lawyer says the player voluntarily met with prosecutors and detectives and answered every question during a two-hour interview.
In his statement, Arenas repeated his assertion that he brought four guns to the Verizon Center to store in his locker in order to get them out of his house and away from his children. He said he mistakenly believed that recent changes in District of Columbia law made it legal for him to store unloaded guns there.
As every 1L should know, ignorance of the law is generally no excuse, and this new piece from CBS Sports speculates about possible criminal charges and sentencing prospects for Arenas:
"The U.S. Attorney will have to file charges for possession of a pistol without a license," [an] official said, speaking on condition of anonymity because he did not have jurisdiction over the case. "The prosecutor cannot simply walk away from this case."
Depending on what facts are discovered in other interviews with possible witnesses to the Dec. 21 locker room confrontation between Arenas and previously obscure guard Javaris Crittenton, the official said one likely outcome would be the following: Arenas, 27, would be permitted to plead guilty to charges of carrying a pistol without a license, a felony that carries a maximum of five years in prison. Such a charge would require a grand jury indictment, which could be acquired quickly since five grand juries are seated at any given time in the District. Any other charges -- which could include misdemeanor counts for possession of unregistered firearms, carrying maximum jail time of six months for each count -- would be dismissed. In exchange for Arenas' cooperation and guilty plea, the prosecutor would ask for no jail time.
"Given his prior offense, however, a judge might consider jail time in this case," one of the law enforcement officials said. "It all depends on which judge he draws." Arenas pleaded guilty to charges of failing to maintain proper registration of a firearm in California in 2003 while playing for the Golden State Warriors.
"Prisons and Budgets"The title of this post is the headline of this effective editorial that appeared in yesterday's New York Times. Here are excerpts:
The United States, which has less than 5 percent of the world’s population, has about one-quarter of its prisoners. But the relentless rise in the nation’s prison population has suddenly slowed as many states discover that it is simply too expensive to overincarcerate.
Between 1987 and 2007 the prison population nearly tripled, from 585,000 to almost 1.6 million. Much of that increase occurred in states — many with falling crime rates — that had adopted overly harsh punishment policies, such as the “three strikes and you’re out” rule and drug laws requiring that nonviolent drug offenders be locked away.
These policies have been hugely costly. According to the Pew Center on the States, state spending from general funds on corrections increased from $10.6 billion in 1987 to more than $44 billion in 2007, a 127 percent increase in inflation-adjusted dollars. In the same period, adjusted spending on higher education increased only 21 percent.
In 2008, the explosion of the prison population ground to a near halt, according to data released last month by the Bureau of Justice Statistics. About 739,000 inmates were admitted to federal and state facilities, only about 3,500 more than were released.
One factor seems to be tight budgets as states decide to release nonviolent offenders early. This can not only save money. If done correctly, it can also be very sound social policy. Many nonviolent offenders can be dealt with more effectively and more cheaply through treatment and jobs programs....
For many years, driving up prison populations has been an easy thing for elected officials to do, popular with voters and powerful corrections officer unions. The new incarceration figures suggest, however, that in the current hard economic times, strapped states are beginning to realize that they do not have the money to keep people in prison who do not need to be there.
January 4, 2010
US Justice Department issues new guidance to federal prosecutors on criminal discovery
As detailed in this official DOJ blog report, "the Deputy Attorney General issued three memoranda regarding criminal discovery practices including a memorandum to all prosecutors containing guidance regarding criminal discovery that prosecutors should follow to help assure that they meet discovery obligations in future cases." And thanks to the same posting, everyone can now read the full memos with the click of a mouse:
- Issuance of Guidance and Summary of Actions Taken in Response to the Report of the Department of Justice Criminal Discovery and Case Management Working Group
- Requirement for Office Discovery Policies in Criminal Matters
- Guidance for Prosecutors Regarding Criminal Discovery
Obviously, these memos do not directly concern sentencing issues, but they do cover important ground that impacts every federal criminal prosecution.
Justice Scalia makes pitch for diversity on Supreme Court
I am pleased to see this notable new AP piece reporting on interesting comments from Justice Antonin Scalia. The piece is headlined "Scalia: Varied job experience needed on high court," and here are excerpts:
Supreme Court Justice Antonin Scalia says he's concerned there aren't more people with varying professional backgrounds being nominated to the nation's highest court....
He said there were three justices with no prior judicial experience [when he first joined the Court] and today there are none. Scalia said he's concerned about the practice because "every aspect of your career broadens your outlook" so "it's good for the court to have people of varying backgrounds."
Regular readers know that I have long been an advocate of diversity on not just the Supreme Court, but also lower courts, especially as concerns diverse pre-judicial legal experience. I am glad to discover that at least one Supreme Court Justice is a fellow traveler in this respect.
Some related new and old posts:
Fourth Circuit affirms convictions and sentence of Zacarias MoussaouiThrough a ruling that might provide a boost for the decision by the Obama Administration to try other 9/11 conspirators in federal court, today the Fourth Circuit has affirmed the convictions and sentence of Zacarias Moussaoui. The unanimous panel ruling in US v. Moussaoui, No.06-4494 (4th Cir. Jan 4, 2010) (available here), runs 77 pages and gets started this way:
Zacarias Moussaoui pled guilty to six criminal conspiracy counts arising from the al Qaeda terrorist organization’s plot to use commercial aircraft to commit terrorist attacks in this country, including the attacks that occurred on September 11, 2001. In a subsequent sentencing proceeding, the jury declined to impose the death penalty and the district court sentenced Moussaoui to life imprisonment without the possibility of release on all six counts, with the sentence on the first count to be served consecutively to the sentences on the other counts. In this appeal, Moussaoui challenges the validity of his guilty plea and his sentences. He has also filed a motion to remand, based upon the Government’s disclosure of classified information during the pendency of this appeal. We affirm Moussaoui’s convictions and sentences in their entirety and deny his motion to remand.
Interesting coverage of ALI's notable death penalty move last yearAdam Liptak's Sidebar column in the New York Times this week effectively covers notable ALI news from a few months ago (which I first reported here). The piece is headlined "Group Gives Up Death Penalty Work in Frustration," and here are excerpts:
Last fall, the American Law Institute, which created the intellectual framework for the modern capital justice system almost 50 years ago, pronounced its project a failure and walked away from it.
There were other important death penalty developments last year: the number of death sentences continued to fall, Ohio switched to a single chemical for lethal injections and New Mexico repealed its death penalty entirely. But not one of them was as significant as the institute’s move, which represents a tectonic shift in legal theory.
“The A.L.I. is important on a lot of topics,” said Franklin E. Zimring, a law professor at the University of California, Berkeley. “They were absolutely singular on this topic” — capital punishment — “because they were the only intellectually respectable support for the death penalty system in the United States.”
The institute is made up of about 4,000 judges, lawyers and law professors. It synthesizes and shapes the law in restatements and model codes that provide structure and coherence in a federal legal system that might otherwise consist of 50 different approaches to everything.
In 1962, as part of the Model Penal Code, the institute created the modern framework for the death penalty, one the Supreme Court largely adopted when it reinstituted capital punishment in Gregg v. Georgia in 1976. Several justices cited the standards the institute had developed as a model to be emulated by the states.
The institute’s recent decision to abandon the field was a compromise. Some members had asked the institute to take a stand against the death penalty as such. That effort failed. Instead, the institute voted in October to disavow the structure it had created “in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.”
That last sentence contains some pretty dense lawyer talk, but it can be untangled. What the institute was saying is that the capital justice system in the United States is irretrievably broken....
Roger S. Clark, who teaches at Rutgers School of Law in Camden, N.J., and was one of the leaders of the movement to have the institute condemn the death penalty outright, said he was satisfied with the compromise. “Capital punishment is going to be around for a while,” Professor Clark said. “What this does is pull the plug on the whole intellectual underpinnings for it.”...
Some supporters of the death penalty said they welcomed the institute’s move. Capital sentencing “is so micromanaged by Supreme Court precedents that a model statute really serves very little function,” Kent Scheidegger of the Criminal Justice Legal Foundation wrote in a blog posting. “We are perfectly O.K. with dumping it.” Mr. Scheidegger expressed satisfaction that an effort to have the institute come out against the death penalty as such was defeated.
But opponents of the death penalty said the institute’s move represents a turning point . “It’s very bad news for the continued legitimacy of the death penalty,” Professor Zimring said. “But it’s the kind of bad news that has many more implications for the long term than for next week or the next term of the Supreme Court.”
Samuel Gross, a law professor at the University of Michigan, said he recalled reading Model Penal Code as a first-year law student in 1970. “The death penalty was an abstract issue of little interest to me or my fellow students,” he said. But he remembered being impressed by the institute’s work. “I thought in passing that smarter people than I had done a sensible job of figuring out this tricky problem.”
Things will look different come September, Professor Gross said. “Law students who take first-year criminal law from 2010 on,” he said, “will learn that this same group of smart lawyers and judges — the ones whose work they read every day — has said that the death penalty in the United States is a moral and practical failure.”
I am not surprised that various academics think that a decision by the ALI driven by a group of academics is a very big deal. But I disagree considerably with Liptak's suggestion that the ALI's decision here was the biggest news concerning the death penalty in 2009. I have seen much more writing and heard much more talk about Ohio's switch in lethal injection protocols than I have seen and heard about the ALI's move. Moreover, the inauguration of another Democratic President who appears to be a serious supporter of the the death penalty strikes me as likely to have a much bigger long-term impact than what the ALI has done.
Some recent related posts:
- American Law Institute Council votes to withdraw Model Penal Code section on the death penalty
- Interesting sentencing doings at this week's ALI annual meeting
- "Obama suggests 9/11 suspect will get death penalty"
- What might a new administration mean for the federal death penalty?
- "Death penalty decisions loom for Barack Obama"
- Feds decide to seek death in local(?) killing in state without the death penalty
- "A year for more executions"
- DPIC releases year-end report on the death penalty in 2009
"Prosecutors seek nearly $200k for child porn victim"The title of this post is the headline of this interesting local article reporting on another case of a child porn victim seeking a significant restitution award from a person who downloaded the wrong dirty picture. Here are excerpts:
Federal prosecutors want Hammond federal Judge Joseph Van Bokkelen to order Portage child pornography convict Mark Ontiveros to pay the victim $193,310.86 in restitution because his computer held images of Vicky before his arrest in summer 2008. Most of that money would be earmarked for her mental health treatment and counseling, according to federal court records.
Ontiveros' attorney, Bryan Truitt, said his client doesn't deny he possessed child pornographic images, a crime that will net the convicted man at least five years in prison. But Truitt said he will argue Ontiveros cannot and should not pay almost $200,000 for the psychological consequences of the girl's sexual exploitation. Ontiveros is not the "proximate cause" of enough harm to warrant that figure, Truitt said....
Prosecutors claim investigators found Ontiveros had collected more than 1,300 images and 18 videos showing children "posing lasciviously" or being raped or molested. Ontiveros admitted to police he viewed child pornography for as many as three hours per day, sometimes when his young son was in the room, according to court records.
At least one ofthe images in Ontiveros' collection is from a series of sexually explicit pictures of the girl referred to in court papers as "Vicky." Nine other children "known to law enforcement" were found in Ontiveros' pictures and videos, but Vicky's lawyer was the only attorney to seek restitution, according to the motion filed by Assistant U.S. Attorney Jill Trumbull-Harris. Vicky's lawyer requested $165,905 for future counseling, $23,205.86 for treatment and "legal-related" costs and $4,200 in attorney fees, Trumbull-Harris wrote....
Vicky will not testify at Ontiveros' sentencing because of "recent severe psychological trauma from attending multiple sentencing hearings" for other offenders, Trumbull-Harris wrote. Federal law mandates a minimum sentence of five years in prison for Ontiveros at sentencing, which is scheduled for Jan. 14. Truitt argues in a sentencing memorandum filed last week that Van Bokkelen should hand Ontiveros the minimum, a term that would fall below advisory sentencing guidelines, to be followed by five years of mental health treatment.
Some related recent federal child porn prosecution and sentencing posts:
Notable new study about juve sex offendersToday's USA Today includes this notable article, headlined "Study: Third of juvenile sex offenders target other kids." Here is how it starts:
More than a third of sex crimes against juveniles are committed by juveniles, according to new research commissioned by the Justice Department. Juveniles are 36% of all sex offenders who victimize children. Seven out of eight are at least 12 years old, and 93% are boys, says the study by the Crimes Against Children Research Center at the University of New Hampshire.
The report comes as states toughen penalties for adult sex offenders and wrestle with how to handle juveniles. "They are different from adult sex offenders," says study co-author David Finkelhor. They are more likely than adults to commit sex offenses in groups, and their victims are younger and more likely to be male.
Finkelhor says only about 10% of juvenile offenders have signs of "sexual preoccupation," an indicator of a pedophile. He says teen offenses include date rape. In the case of offenders age 12 or 13, it is often sexual experimentation with younger kids. Early sex education is key to teaching boundaries and preventing such experimentation, Finkelhor says.
The study, based on 2004 law enforcement data, finds that juvenile sex offenders commonly target children younger than they are. Their numbers increase sharply at age 12 and plateau at 14. Female offenders are younger.
January 3, 2010
"A year for more executions"The title of this post is is the headline of this new Washington Post editorial. Here are excerpts:
Virginia was one of 11 states that put an inmate to death in 2009. The state executed three prisoners, including D.C.-area sniper John Allen Muhammad, contributing to the first spike in executions since 2005. Nationwide, 52 prisoners were put to death in 2009, up 41 percent from the 37 executed during 2008....
[T]he continued reliance on this unnecessary and barbaric punishment is regrettable, especially because of the continued risk that innocent men and women could be put to death. Indeed, nine inmates who had spent years on death row were fully exonerated in 2009, thanks in large part to the increasing use and sophistication of DNA evidence.
Perhaps because of the nationwide drop in the murder rate or perhaps because of the risk of wrongful execution and the exorbitant costs associated with prosecuting capital cases, fewer death sentences were handed down this year, according to a report by the Death Penalty Information Center....
While the number of death row inmates in the federal system increased to 58 -- three times the number that existed at the beginning of the Bush administration -- the size of the death row population in the states continued to drop and stood at 3,279. More than 1,400 such inmates are held in California, Florida and Texas.
New Mexico took the commendable step of abolishing capital punishment in the state. Sadly, Maryland lawmakers debated such a step but failed to garner the votes for passage. Instead, they passed legislation that authorizes the death penalty only in cases where DNA or videotaped evidence corroborates guilt. This toughening of the standards is welcome, but lawmakers should not abandon the quest to erase the death penalty from the state's books.
Yesterday, I complimented the Post for an editorial that usefully asked why violent crime rates keep falling. But today I must assail the same editorial board for not even considering the possibility that the death penalty could be playing a positive role in our society becoming more safe. (It is also telling and annoying that this editorial takes a swipe at the Bush administration even though the Clinton administration was most responsible for bringing the federal death penalty back to life and for limiting federal habeas rights of death row defendants.)
More broadly, I find it comical that this editorial calls the death penalty an "unnecessary and barbaric punishment" right after noting that Virginia in 2009 executed mass murderer John Allen Muhammad. Muhammad's killing spree was surely unnecessary and barbaric, but his execution could readily be viewed as necessary and even humane. Muhammad's continued existence tormented his ex-wife and surely some of the many victims of his mass murder; his death was likely necessary to bring at least a small measure of cathartic relief to the communities in which he caused great suffering. He was executed using a protocol that seeks to avoid all pain after a fair trial and multiple appeals, and he humanely had nearly a decade longer than his victims to prepare for his death.
As for "the continued risk that innocent men and women could be put to death," don't Maryland's 2009reforms showcase that this risk always being diminished? Of course, in Muhammad's case, there was no risk that innocent person was put to death, even though Muhammad himself killed many innocent men and women.
I continue to have great respect for people who express their passionate beliefs that the death penalty is immoral. But calling the death penalty an "unnecessary and barbaric punishment" is stating a debatable conclusion, not making a reasoned argument. I remain troubled and disappointed that modern discussion of the death penalty remains dominated by partisan dogma rather than reasoned debate.
What is "the most violent city per capita in America"?
Click here to find out. The article linked provides these explanations for why the city wins this unfortunate honor:
“Our 30-year crime history is appalling,” said [local] Prosecutor Michael D. Thomas.... “You can’t do more with less.” Thomas identified reductions in police, more lenient state sentencing guidelines and a disproportionately low number of prosecutors in [this] County versus similar cities as key factors in [its] crime rate....
Law enforcement is key to protecting the public, Thomas said. But even if the court system had the resources to fully prosecute all criminals, legislators still sometimes render impotent the system’s potential to enact justice.
“Our sentencing guidelines tie some of our judge’s hands behind their backs,” he said, removing the judge’s leeway in imposing a sentence and often resulting in shorter sentence benefiting the convict. Thomas said first-offense felons go to prison less than 10 percent of the time in [the state]. Based on the number of parolees Thomas’s office prosecutes, many convicts are released from prison early, Thomas said.
I will provide a hint (and perhaps stir up some controversy) by noting that the state in which this city resides does not have the death penalty.