March 15, 2010
Effective NY Times coverage of service as a sentencing factorsWriting in the New York Times, John Schwartz has this effective new piece on military service as a sentencing factor. The piece is headlined "Defendants Fresh From War Find Service Counts in Court," and here are excerpts:
At the federal level, judges are bucking guidelines that focus more on the nature of the crime than on the qualities of the person who committed it. States, too, are forming special courts to ensure that veterans in court receive the treatment their service entitles them to.
While veterans are not considered to be more likely to be arrested than the rest of the population, estimates released by the Bureau of Justice Statistics in 2008 found 229,000 veterans in local jails and state and federal prisons, with 400,000 on probation and 75,000 on parole.
There are about 1 million veterans of the two current wars in the Veterans Affairs system so far, said Jim McGuire, a health care administrator at the agency. He cited statistics suggesting that 27 percent of active-duty veterans returning to civilian life “were at risk for mental health problems” including post-traumatic stress syndrome.
Judges have recognized that many of those returning from war are carrying a heavy burden of damage that might not be physically visible. As one federal district judge in Denver, John L. Kane, wrote in an order giving a defendant probation instead of a prison sentence, the soldier “returned from the war, but never really came home.”
The judges’ decisions are part of a broader fight over sentencing, and over once-rigid federal guidelines that tend to punish the crime while giving little weight to the specific circumstances of the defendant. The guidelines explicitly state that “good works” like military service “are not ordinarily relevant” in determining whether to give sentences below the recommended range.
The Supreme Court, however, in a series of cases, has declared that the federal sentencing guidelines are advisory, not mandatory. The United States Sentencing Commission is considering proposals that would allow military service or other evidence of “prior good works” to be considered as mitigating factors in sentencing decisions.
The Supreme Court seemed to signal greater consideration for military service in a decision in November throwing out the death penalty for a Korean War veteran who was convicted in 1987 of murdering his former girlfriend and her boyfriend. Calling for a new sentencing hearing, the justices wrote that lawyers for the defendant, George Porter Jr., should have presented evidence of “the intense stress and emotional toll that combat took” on Mr. Porter, who suffered from “dreadful nightmares and would attempt to climb his bedroom walls with knives at night.”
Some recent related posts:
- "Judges Consider New Factor at Sentencing: Military Service"
- "Judge suggests more sentencing options for war veterans"
- Can downloading of child porn be blamed on post-traumatic stress disorder?
- Prior military service as a sentencing mitigator gets a big boost from SCOTUS
- Should prior military service reduce a sentence?
"More States Rethinking Life Sentences for Teens"The title of this post is the headline of this new piece in The National Law Journal. Here is how it gets started:
Their lawyers have long urged juries to give juvenile defendants a second chance. Now a growing number of states are rethinking the wisdom of sentencing teenagers to life in prison. Two states have recently passed -- and at least 11 states are considering -- legislation that would end life sentences for those under 18 years old or, more generally, restrict charging juveniles as adults.
The U.S. Supreme Court will also have something to say on the issue. In two Florida cases argued in November, the high court is considering whether a life sentence without parole for juveniles who have committed crimes other than murder violates the U.S. Constitution's prohibition on cruel and unusual punishment.
But state lawmakers are not waiting to hear the justices' opinion. Although efforts to abolish juvenile-lifer laws are nothing new, the legislators' willingness to side with criminal defense lawyers against prosecutors is a change. And a key reason appears to be new scientific evidence that adolescents are simply not capable of weighing their actions like adults.
Ohio ready to try again to get condemned killer to death chamberAs detailed in this AP article, which is headlined "Ohio Tries For 3rd Time To Execute Inmate," Ohio is slated to try again to execute Lawrence Reynolds who was convicted of killing a 67-year-old widow in 1994. Here is why Ohio is having to hope the third time will be the charm:
Tuesday's execution would be Ohio's third attempt to execute him. Reynolds was scheduled for execution last week but was found unconscious in his cell and hospitalized. Gov. Ted Strickland postponed his original execution date last fall while the state reviewed its execution method.
Since then, Ohio has switched from a three-drug process to a one-drug system. All sides in the death penalty debate agree the single dose is painless, and the first three inmates executed in Ohio with the new method died quickly.
But Reynolds' attorneys are asking the Supreme Court for more to time to make their case that the state hasn't corrected problems with accessing inmates' veins before the single drug is used. They also say Ohio's executioners lack proper training and that a new backup method that injects lethal drugs into muscle is untried and could cause pain.
Since this AP piece was published earlier today, the Supreme Court has denied Reynolds' final appeal, so all systems seem to be go for Ohio's third attempt to kill Reynolds (and third execution in 2010).
"Prison-reform bills would save money, improve public safety"The title of this post is the subheading of this notable editorial from my own (unsually conservative) Columbus Dispatch. Here are excerpts:
[Proposed legislative] reform promises to save the state $29 million a year, alleviate some of the dangerous crowding in state prisons and forestall the day that Ohio must spend billions to build more prisons. Other states have implemented variations on Ohio's legislation with good results. This bill doesn't alter how judges and prisons handle truly dangerous people.
Ohio, unlike the federal government, is forced to balance its budget. So every dollar that goes into housing, feeding and providing health care to prison inmates -- about $1.8 billion annually -- is a dollar that's not available for education, infrastructure and the needy.
As of last Monday, the population at the state prisons was 50,993 inmates, far exceeding the design capacity of 38,000. If nothing changes, the inmate population is projected to reach 60,000 by 2018. This legislation gradually would reduce the population by around 6,700 inmates from today's total.
Under reform proposals, nonviolent inmates would earn credit for good behavior and compliance with treatment and education programs, subtracting days per month from their sentences, capped at 8 percent of their total time in jail. No sex offender nor anyone convicted of a first- or second-degree felony would be eligible for early release. Studies have shown that these programs reduce recidivism, making the public safer....
The plan also would divert people who chronically fail to pay child support away from prison and into to a community program where they would be taught techniques for getting and keeping jobs and counseled about accepting responsibility.... For other nonviolent offenders, the bill expands the use of community-based corrections, where inmates can get drug treatment, learn anger management and responsible parenting and get their high-school equivalency certificates.
These days, there aren't a lot of easy fixes to systemic, budget-busting problems in state government, but this is low-hanging fruit. The legislature should pass these reforms.
That a relatively conservative editorial board would call a reform bill to reduce state incarceration "low-hanging fruit" surely suggests to me that the tough-on-crime-times they are 'achanging. That said, nobody should start counting any sentencing reform chickens until bills become laws.
Any pre-game predictions or hopes for today's federal sentencing of Erin Andrews' stalker?As detailed in this new AP article, which is headlined "ESPN's Erin Andrews' stalker to get sentence in LA," a high-profile federal sentencing involving a high-profile victim is scheduled for this afternoon. Here are the basics:
The man convicted of stalking ESPN reporter Erin Andrews and shooting nude videos of her through a hotel room peephole is facing sentencing in a Los Angeles courtroom.
Michael Barrett, a 48-year-old Chicago-area insurance executive, has pleaded guilty to interstate stalking and agreed to a 27-month prison sentence. Barrett is suspected of renting hotel rooms adjacent to Andrews in three cities in 2008, including Milwaukee.
Andrews is expected to address the court and talk to reporters after the Monday hearing. Her attorney has said she did not agree to the sentence outlined in the plea bargain, and a sentencing memo filed last month noted that she wants Barrett to pay her about $335,000 in restitution.
As I have noted in prior posts here and here, both the recommended prison sentence and the requested restitution amount are not without controversy. My gut tells me that Barrett will end up getting slightly more than 27-months as a prison sentence, but will also be required to pay less than Andrews seeks in restitution. But that's just a guess based on no special knowledge or insights (and also based on the assumption that Andrews specifically urges a longer prison sentence in court today).
More fundamentally, this case seems like a perfect setting for some creative, shaming-type sanctions in addition to the traditional prison term. Requiring Barrett, say, to post nude videos of himself on to the internet would have somewhat of an "eye-for-an-eye" kind of appeal, but I fear someone like Barrett might enjoy such a punishment too much. Or, assuming Barrett is a sports fan, how about a lifetime ban on watching ESPN's Sportscenter or on watching the NCAA baskeball tournament would really put a hurt on him. Or maybe Barrett should be required to vote repeatedly for Andrews to help her win on this season's Dancing with the Stars.
- What (precise?) sentence should Erin Andrews advocate for her stalker/peeper?
- Interesting prison and restitution recommendations in Erin Andrews peeper prosecution
UPDATE: This AP report on this afternoon's Barrett sentencing suggests my prediction of the sentence was spot-on:
An Illinois insurance executive who secretly shot nude videos of ESPN reporter Erin Andrews was sentenced Monday to 2 1/2 years in prison before giving a tearful apology that was harshly rebuked by his victim....
Barrett, who has until May 3 to surrender, was ordered to have supervised probation for three years after his release, during which he will be prohibited from contacting Andrews, her family or friends.
He will not be allowed to stay in a hotel without approval of a probation officer and if he accepts employment somewhere, Andrews will be notified. Barrett was also ordered to pay $5,000 in fines and $7,366 in restitution, but the judge said further restitution may be imposed to compensate ESPN.
"The Twilight of the Pardon Power"The title of this post is the title of this article from former US Pardon Attorney Margaret Colgate Love now available via SSRN. Here is the abstract:
Throughout our nation’s history, the president’s pardon power has been used with generosity and regularity, to correct systemic injustices and to advance the executive’s policy goals. Since 1980, however, presidential pardoning has fallen on hard times, its benign purposes frustrated by politicians’ fear of making a mistake, and subverted by unfairness in the way pardons are granted. The diminished role of clemency is unfortunate, since federal law makes almost no provision for shortening a prison term and none at all for mitigating the collateral consequences of conviction. It would be bad enough in these circumstances if presidents had made a conscious choice not to pardon at all, or to make only token use of their constitutional power. But what makes the situation intolerable is that, as the official route to clemency has all but closed, the back-door route has opened wide. In the two administrations that preceded President Obama’s, petitioners with personal or political connections in the White House bypassed the pardon bureaucracy in the Department of Justice, disregarded its regulations, and obtained clemency by means (and sometimes on grounds) not available to the less privileged. Much responsibility for the desuetude and disrepute into which a once-proud and useful institution of government has fallen must be laid at the door of the Justice Department, which during the past two administrations failed in its responsibilities as steward of the power, exposing the president to embarrassment and the power to abuse. To date, President Obama has taken no steps to reform and reinvigorate a pardon process that has, in Justice Anthony Kennedy’s words, been “drained of its moral force.”
Who hi-jacked the president’s pardon power? Is it worth rescuing, or should it be left to die in peace? To find the answers, this article first looks at pardoning practices in the 19th and early 20th centuries, a time when the pardon power played an important operational role in the federal justice system. It describes how pardon evolved into parole, and after 1930 came to be used primarily to restore rights of citizenship. It then examines the reasons for pardon’s decline in the 1980s and its collapse in the Clinton Administration. Finally, it argues that President Obama should want to revive the power, and suggests how he might do it.
Some related recent posts on federal clemency realities:
- Obama as Scrooge: no Christmas clemency grants
- Fitting complaints about an ugly clemency scoreboard: "Turkeys 2, humans 0"
- The true sentencing turkeys on this Thanksgiving eve
- Justified complaints that Obama's first pardon will be of a turkey
- "President Barack Obama proving stingy with his pardon power"
- Notable press stories noting Obama's lack of clemency action
- A simple plea for Prez Obama: grant at least a single clemency in your first 100 days
- Historical evidence that it is NOT too early to start demanding clemencies from President Obama
- When will President Obama start acting like President Lincoln when it comes to the clemency power?
- "The Fall of the Presidential Pardon"
Guns don't kill people, people kill people ... after cops sell the gunsThe cheeky title of this post is inspired by this new story reporting on the backstory of two guns used in two recent high-profile shootings. The news account is headlined "Memphis police, Shelby sheriff's office sold guns used in high-profile shootings," and here is how it begins:
Two guns used in high-profile shootings at the Pentagon and a Las Vegas courthouse both came from the police and court system of Memphis.
Law enforcement officials told The Associated Press that one of the weapons in the Pentagon attack was seized by Memphis police from a convicted felon in a 2005 traffic stop and later traded to a gun dealer. And they said the shotgun used in the Jan. 4 courthouse shooting in Las Vegas was sold by a judge's order and the proceeds were given to the Shelby County Sheriff's Office.
In both cases, the weapons first went to licensed gun dealers but later came into the hands of men who were legally barred from possessing them -- one a convicted felon, the other mentally ill.
The use of guns that once were in police custody and then involved in attacks on police officers highlights a little-known divide in gun policy in the United States. While some cities and states destroy guns gathered in criminal probes, others sell or trade the weapons to get other guns or buy equipment.
In fact, on March 4, the day of the Pentagon shooting, Tennessee Gov. Phil Bredesen signed legislation removing the option of destroying confiscated guns, unless they are unsafe or don't work, and directing that the proceeds of such court-ordered gun sales go to law enforcement instead of a city or county's general fund.
Reviewing the latest ACCA ruling from SCOTUSThe Florida Times-Union has this effective article discussing the Supreme Court's recent ruling in the Johnson ACCA case (basics here). The piece is headlined "U.S. Supreme Court tosses career criminal sentence in Jacksonville case: High court puts shackles on career criminal guidelines," and here is how it starts:
A U.S. Supreme Court ruling this month in a Jacksonville man's case will force federal courts to use more scrutiny before imposing mandatory sentences for so-called armed career criminals, legal observers say.
The court ruled March 2 that Florida's simple battery law is not a violent crime federal prosecutors can use to enhance sentences for gun criminals. The federal Armed Career Criminal Act calls for a mandatory 15-year sentence for anyone convicted of a gun crime who has at least three prior violent felonies.
For Curtis Darnell Johnson, who pleaded guilty in 2007 to unlawfully transporting firearms, the opinion means his current 15-year sentence will be reduced. Prosecutors had used a 2002 battery conviction as one of the underlying crimes to charge him as an armed career criminal. But Justice Antonin Scalia, writing for a 7-2 majority, said Florida's battery statute doesn't constitute a violent felony because physical force isn't an element of the crime.
Johnson, 41, now faces a 10-year maximum and just two to three years under federal sentencing guidelines, said Assistant Federal Defender Lisa Call of Jacksonville, who argued the case in Washington in October.
The article goes on to explain why it is unlikely that all too many other cases are sure to be directly impacted by the Justices' work in Johnson. But the amazing reality that Curtis Darnell Johnson is now only facing about 2-3 years under the guidelines rather than being subject to a 15-year mandatory minimum under the Armed Career Criminal Act highlights the dramatic impact of this ruling for at least one defendant.
March 14, 2010
Coffee, Tea or Milk: will any new "party" seriously engage with criminal justice issues?
I continue to wonder if (and hope that) the new tea party movement will take on the growth of government and government inefficiencies in the operation of massive modern criminal justice systems. And, as highlighted by this lengthy CNN piece, there is now another drink-inspired party brewing up talk of engaging with the traditional two parties. Unfortunately, it seems that so far the so-called Coffee Party is also decaffinated when it comes to engaging with criminal justice issues, which comprise among the most consequential forms of government interaction with citizens and also is among the most massive forms of government control and expense.
Of course, the vast majority of persons who have the luxury of the extra time and energy to get involved with the new Coffee or Tea Parties are not likely to have significant experience with state or federal criminal justice systems. Still, any and all politically savvy persons must recognize that an extraordinary amount of taxpayer money is spent on modern criminal justice systems. Moreover, any new party that is concerned about government spending on programs with uncertain returns ought to be asking hard questions about the costs and benefits of mass incarceration and marijuana prohibitions and a host of other related criminal justice issues.
I do not really expecting to hear much sound and sober criminal justice reform talk coming from the new parties (or the old parties) anytime soon. But I will keep noticing and lamenting the failure of any old or new movement to take stock of the many ways in which massive modern criminal justice systems may be disserving various long-term national interests and values. And if someone wants to start a new party to focus on these bread-and-butter criminal justice issues (which maybe we could call the Milk & Honey Party), please be sure to count me in.
Georgia still struggling to pay for death penalty cases old and newThis notable AP report, which is headlined "Georgia public defender system still reeling from Nichols case," highlights the high and tangible costs of (poorly?) administering the death penalty:
Georgia’s public defender system is still trying to recover its financial footing five years after a courthouse gunman racked up a $3 million taxpayer-funded defense tab on the way to his conviction.
The state’s ailing system to defend the poor has struggled almost since its start in 2005, hamstrung not just by the costly Brian Nichols case but also because of the lukewarm support from legislators and a dismal economy.
The state now can’t afford to pay to defend the accused in several capital punishment cases, leaving them waiting in jail for years before their trials start. Some, such as Khan Dinh Phan, have appealed to the Georgia Supreme Court for help. They have asked that their cases be dismissed because the delays violated their right to a speedy trial.
Georgia has faced similar problems before. State legislators created the public defender system precisely because individual counties struggled to provide adequate legal defense for the poor. But prosecutors and defense attorneys say it may take drastic measures to recover from the Nichols’ case, one of the statewide system’s first high-profile tests....
Phan’s attorneys on Tuesday asked the Georgia justices to demand that legislators devote more funding to the system, a $39.8 million program which is facing a $2.4 million cut this fiscal year. Attorney Chris Adams told the court that the lack of funding has turned him into a “potted plant” and a “lawyer in name only.”...
Prosecutors, meanwhile, are in a bind. Gwinnett County District Attorney Danny Porter has called the public defender system “fatally flawed,” and even suggested that the court strike it down as unconstitutional. But he said dismissing Phan’s case is not the solution. “Where is the justice in that?” he said in court documents.
He also said taxpayers should not pay for the public defender council’s “transgressions and the lack of restraint” in deciding that Nichols’ defense outweighed the needs of thousands of other defendants. The state and Fulton County paid more than $900,000 in expert witness fees and more than $1 million in attorney fees.
The system has faced a flurry of other legal challenges, including a lawsuit filed last year that claimed the state was refusing to provide attorneys for dozens of convicted criminals seeking appeals. A Fulton County judge ordered the state last month to pony up funding and provide attorneys for the 100 or so inmates....
Death penalty cases present a particularly prickly problem. They often take months to go to trial even without a budget crisis, and prosecutors and civil rights groups worry that wait times that stretch for years due to funding problems could lead to costly constitutional challenges. “You have to have a lawyer — this is not a negotiable thing,” said Richard Dieter of the Death Penalty Information Center. “These are fundamental constitutional issues, but satisfying them has a ticket, a price that some states can’t afford. They’re cutting police, schools and now they’re reluctant to raise funding for death penalty defense.”
Another flashpoint in the debate involves Jamie Ryan Weis, who faces the death penalty on charges that he killed a Pike County woman during a 2006 burglary. The state has struggled to pay for his defense, and he has had no attorneys to defend him for more than two years.
Weis’ appellate attorney, Stephen Bright, likened his client’s situation to an amateur baseball team taking on a professional one. “You can’t have a death penalty case where one side has all the lawyers, experts and resources, and the other does not,” said Bright. “If you are not willing to pay, don’t pursue it as a capital case.”
Should showing up for sentencing drunk justify a much tougher sentence?This local story out of Nebraska, which is headlined "Police: Man Drunk At DUI Sentencing: Jason Botos Needed Help Getting Out Of Car," is mostly sad and comical. Then again, it also raises the legal issue in the title of this post. Here are the basics:
Authorities said a drunken driver showed up for his sentencing hearing drunk again. Jason Botos, 30, was driven to court by his father and investigators said he was so drunk that he had to be helped inside and wasn't able to make his court appearance.
"He was unable to get himself out of the vehicle, he was so intoxicated," said deputy Sarpy County attorney Ben Perlman. Investigators said Botos' father asked deputies to help carry his son inside the courthouse.
Botos was scheduled to be sentenced for a drunken driving offense in September 2009. He was driving near Highway 75 and Cornhusker Road when his car jumped a curb and smashed into five other vehicles, critically injuring three people.
"Because he failed to appear for his court appearance, a warrant was issued," said Perlman. Deputies arrested Botos in the parking lot. "He was kind of slumped over. Two deputies assisted him," said Sarpy County Sheriff's Deputy Tina Anderson. "He could not walk on his own."
Inside the jail, Anderson put Botos through a breath test. "The test showed he was at a 0.43," she said, a level that is more than five times the legal limit....
Botos now faces a new charge and more jail time in a case that has authorities shaking their heads. "This is a pretty rare case, and extreme case," said Capt. Monty Daganaar of the Sarpy County Sheriff's Office.
Botos will be sentenced on Tuesday. Between the new charge of failure to appear and the drunken driving conviction, he could get 18 months in jail.
Though I do not know Nebraska law well, I am inclined to assume there is no general prohibition on getting really drunk. And, though I suppose Botos technically did not quite make it to his scheduled sentencing, it seemed as though he tried (and thus might technically have a mens rea defense to the failure to appear charge). Thus, I think it is fair to suggest that Botos may end up getting a tougher sentence just because he did not have the good sense to avoid drinking (a lot) just before his sentencing. Do readers think that bad judgment alone really justify a much tougher sentence?
Of course, I think all drunk driving sentences should be, for deterrence purposes, presumptively much long than they usually are. But, I am inclined give Botos some credit in this setting for getting his dad to drive his sorry drunk butt to the courthouse for his scheduled sentencing. And yet, it would appear as though that decision might end up costing him more time than if he just passed out drunk at home.