March 27, 2010
"Every time a killer is sentenced to die, a school closes"The title of this post is the provocative first sentence of this effective FoxNews article, which is headlined "Just or Not, Cost of Death Penalty Is a Killer for State Budgets." A subheading of the piece also coins the phrase "death row boondoggles," which I may start using a lot. Here is the subheading and also other excerpts from the piece:
Capital murder trials and death row boondoggles are wreaking havoc on budgets across the country as many states are now rethinking the death penalty, which is enormously costly and rarely imposed even after successful prosecutions....
Forget justice, morality, the possibility of killing an innocent man or any of the traditional arguments that have been part of the public debate over the death penalty. The new one is this: The cost of killing killers is killing us.
"There have been studies of costs of the death penalty before, but we have never seen the same reaction that we are seeing now," says Richard C. Dieter of the non-partisan Death Penalty Information Center. "Perhaps it is because governments are looking for ways to cut costs, and this is easier than school closings or layoffs, but it sure has hit a nerve."
In the last year, four states — Kansas, Colorado, Montana and Connecticut — have wrestled with the emotional and politically charged issue. In each state there was a major shift toward rejection of the death penalty and narrow defeats for legislation that would have abolished it. In Connecticut, both houses actually voted in favor of a bill that would have banned executions, but the governor vetoed it.
Unlike past debates over executions, the current battles are fueled largely by the costs the death penalty imposes on states. The numbers, according to the studies, are staggering....
A Florida study found the state could cut its costs by $51 million simply by eliminating the death penalty. But no state matches the dilemma of California, where almost 700 inmates are sitting on death row and, according to Natasha Minsker, author of a new report by the Northern California chapter of the American Civil Liberties Union, few will ever actually be put to death. In fact, she says, the odds against being executed are so great, murder suspects in California actually seek the death penalty because it is the only way to get a single room in the state's prison system.
"Only 1 percent of people sentenced to death in California in the last 30 years have been executed," Minsker said. "The death penalty in California is purely a symbolic sentence." Her study found that the cash-strapped state could immediately save $1 billion by eliminating the death penalty and imposing sentences of life without parole. The alternative, if the cash-strapped state keeps the death penalty: spend $400 million to build a new death-row prison to house the growing number of prisoners.
Minsker said just keeping prisoners on death row costs $90,000 more per prisoner per year than regular confinement, because the inmates are housed in single rooms and the prisons are staffed with extra guards. That money alone would cut $63 million from the state budget. But other savings would ripple through every step of the criminal justice system as well, from court costs to subsidized spending for defense attorney and investigation expenses.
Important and timely new paper on judicial sentence modification and early releaseThus coming Tuesday, the Supreme Court will hear oral arguments in important "back end" sentencing cases: Dillon v. US (09-6338) and Barber v. Thomas (09-5201). Though I will preview these cases in some coming posts, both cases raise questions about the role of judges and the procedures used to modify sentences and provide for early release from imposed prison terms. Given these SCOTUS plans, this new piece on SSRN from Cecelia Klingele is a timely must-read. The piece is titled "Changing the Sentence Without Hiding the Truth: Judicial Sentence Modification as a Promising Method of Early Release," and here is the abstract:
Last year, as the State of California struggled with a $42 billion budget deficit, its financial inability to correct constitutionally-deficient prison conditions led a federal court to order the release of 40,000 state prisoners. In Oregon, Michigan, Connecticut, Vermont, and Delaware, spending on corrections now exceeds spending on higher education. Across the nation, more than 1 of every 100 Americans is behind bars. When the financial crisis of 2008 dealt its blow, state correctional budgets were already nearing a breaking point. Now, in the wake of unprecedented budget shortfalls, state governments have been forced to confront a difficult reality: the ever-increasing prison population has come at too high a price. The question is no longer whether to reduce the number of prisoners, but how.
Reversing years of ever-harsher sentencing policies, jurisdictions throughout the United States are trying to cut costs by expanding good time credit, increasing parole eligibility, and authorizing new forms of early release. This Article examines judicial sentence modification, an often overlooked ameliorative mechanism that has potential benefits many other forms of early release lack. For states wishing to promote early release in a manner that is both transparent and publicly accountable, judicial sentence modification is a promising, and potentially sustainable, new mechanism for sentence reduction.
Should former NY Governor Elliot Spitzer have to register as a sex offender?The question in the title of this post is inspired by this local story from the heartland, which is headlined "
A bill passed by the Kansas House on Wednesday would land people convicted of hiring a prostitute on the state’s sex offender list for 10 years.
Many states, including Kansas, already require sex offender registration for those soliciting minors. Some states, such as California, give judges the discretion to require registration in solicitation cases.
But adding solicitation to the crimes requiring offender registration would be a significant expansion of the offender registry, critics said.
Given that former NY Gov Spitzer has never formally been convicted of hiring a prostitute, I suppose he need not yet worry about being subject to all the collateral consequences that face offenders who end up on a sex offender registry. Nevertheless, using him as an example of a (typical?) John provides a good focal point for a debate about whether this type of criminal should be required to register as a sex offender.
March 26, 2010
Lots of gun news from DC: Gilbert Arenas gets probation for gun possession, while Dick Heller loses latest Second Amendment case
Proponents of gun rights in DC might be inclined this afternoon to remember the old saying "ya' win some, ya' lose some," after gun possessor Gilbert Arenas had a pretty good day in a DC court, while gun possessor Dick Heller had a not-so-good day in a DC court. Here are the basic headlines and leads from coverage from the Washington Post:
Washington Wizards star guard Gilbert Arenas was spared a jail sentence Friday when a judge sentenced him to probation for bringing guns into the Verizon Center, ending a high-profile locker room confrontation with a teammate that changed the makeup of the team and Washington-area sports.
D.C. Superior Court Judge Robert B. Morin issued the sentence after a 100-minute hearing before a packed courtroom. Morin sentenced Arenas to 18 months in jail, but suspended that part of the sentence. He ordered the star to serve two years probation to begin with 30 days in a halfway house. He also ordered Arenas to serve 400 hours of community service and pay a $5,000 contribution to a crime victim's fund.
Corrections officials will determine in the next few days what halfway house he will be assigned to. Once there, Arenas will stay overnight, but be allowed to leave during the day to serve his community service.
A federal judge on Friday upheld limitations on gun ownership that the District of Columbia put in place following a 2008 Supreme Court decision overturning the city's outright ban on handguns.
Dick Heller, the plaintiff in the landmark Supreme Court case, had challenged the new regulations, claiming the registration procedures, a ban on most semiautomatic weapons and other limitations violated the intent of the high court's decision.
U.S. District Judge Ricardo M. Urbina sided with the city, saying the Supreme Court decision did not ban reasonable limits on gun ownership designed to promote public safety.
Is it true that nobody's view on the death penalty can be influenced by its costs?The question in the title of this post is inspired by this notable story coming from Nebraska, which is headlined "Nebraska lawmakers turn down death penalty study." Here are the basics:
The Legislature split 22-22 Thursday on authorizing a $50,000 study of what it costs to have a death penalty in Nebraska, leaving the question of taxpayer costs unanswered for the time being. Senators opposing the idea expressed concerns that such a study could gather accurate numbers and information.
A response to an inquiry on costs last year by Sens. Danielle Conrad and Jeremy Nordquist to Attorney General John Bruning said the attorney general's office had never tracked the expenditure of its funding on a case-by-case basis. It had never had a budget in which funds were specifically identified for capital punishment.
Opponents also discredited past studies on criminal justice issues and questioned whether knowing the costs would change anyone's mind about supporting or not supporting capital punishment.
Senators opposed to the death penalty have made it "very clear," they don't care about the costs, said Omaha Sen. Scott Lautenbaugh. "It's going to cost us $50,000 and I wonder what we'll find out. And I wonder what we could have done with that $50,000, especially now," he said.
Omaha Sen. Brenda Council, who sponsored the bill (LB1105), said it is important that senators who decide public policy know as much as possible about the policy they are voting on. Money has been an important topic of discussion in this year's session as senators look toward mounting budget shortfalls.... "We need a dispassionate analysis of maintaining this program of government," she said.
Other states have undertaken these cost studies, she said. But some senators have rejected using other state's costs in discussing Nebraska's death penalty.
Last year's approval of lethal injection seemed to settle the issue of the death penalty, said Lincoln Sen. Colby Coash. "Some of you have argued that we can't put a price on justice, and I can agree with that," he said. "But I don't find it to be a compelling argument for ignoring what justice costs. "We don't have anything to fear from figuring this out."
Even capital punishment's staunchest proponents would agree better data make for better debate, no matter the subject matter, said Lincoln Sen. Bill Avery.
Lincoln Sen. Tony Fulton, who has in the past voted against repeal of the death penalty, voted in favor of the cost study. "I have no fears or concerns about getting data," he said. "It's important to have good, solid data when making decisions about taxpayer dollars."...
The issues of law, justice, punishment and consequences are incredibly complex, said Judiciary Chairman Brad Ashford. It is extremely hard work to decide how to deal with the behaviors out there that affect all of us. "If we can't study in-depth the ultimate punishment for the crime of first-degree murder," he said, "how are we ever going to sort out the other parts of our sentencing law?"
I wonder if the Tea Party Movement had any input in this debate, as I would expect that the members of that party would be eager to know the cost of any and every government program and would be (justifiably?) concerns that a lot of government waste and inefficiency surrounds the application of the ultimate punishment for the crime of first-degree murder in Nebraska.
Relatedly, I would think that at least some members of the all the political parties might have their views on the death penalty influenced by a sober accounting of its costs. I am certain ardent proponents and ardent opponents of the death penalty (whose voices far too often dominate the debate) are very unlikely to have their views changed based on cost data. But I would suspect that a tangible (and sizable?) percentage of voters (and politicians?) do not hold ardent views on this issue and thus might be influenced by an effective accounting of the costs of a government-run, single-payer death penalty system.
Some recent related posts on the costs of capital punsihment:
- NY Times editorial assails "High Cost of Death Row"
- Georgia struggles to pay for a costly capital system
- The challenging economics of death causing problems in Chicago
- Great new (though still dated) examination of the death penalty and plea bargaining
- CNN now talking about the costs of the death penalty and state reforms
- States considering laying off the death penalty during tough economic times
- The economic case against the death penalty getting more and more attention
- More discussion of cost concerns in debates over the death penalty
- Capital case cost concerns continue to inform reform debate
- Still more discussion of the costs of the death penalty
- "Opponents Focus On Cost In Death Penalty Debate"
- New DPIC report assails costs (and opportunity costs) of death penalty administration
Should and will California's voters legalize marijuana in that state this November?
We all know all the reasons 2010 is shaping up to be an exciting election year, but there is now no "race" I will be watching more closely this fall than the debate over the newly-approved California ballot initiative about legalizing marijuana. This new New York Times piece, which is headlined, "Legal-Marijuana Advocates Focus on a New Green," provides some of the essential backstory:
Perhaps only in California could a group of marijuana smokers call themselves fiscal realists. And yet, faced with a $20 billion deficit, strained state services and regular legislative paralysis, voters in California are now set to consider a single-word solution to help ease some of the state’s money troubles: legalize.
On Wednesday, the California secretary of state certified a November vote on a ballot measure that would legalize, tax and regulate marijuana, a plan that advocates say could raise $1.4 billion and save precious law enforcement and prison resources.
Indeed, unlike previous efforts at legalization — including a failed 1972 measure in California — the 2010 campaign will not dwell on assertions of marijuana’s harmlessness or its social acceptance, but rather on cold cash. “We need the tax money,” said Richard Lee, founder of Oaksterdam University, a trade school for marijuana growers, in Oakland, who backed the ballot measure’s successful petition drive. “Second, we need the tax savings on police and law enforcement, and have that law enforcement directed towards real crime.”...
The law would permit licensed retailers to sell up to one ounce at a time. Those sales would be a new source of sales tax revenue for the state. Opponents, however, scoff at the notion that legalizing marijuana could somehow help with the state’s woes. They tick off a list of social ills — including tardiness and absenteeism in the workplace — that such an act would contribute to.
“We just don’t think any good is going to come from this,” said John Standish, president of the California Peace Officers Association, whose 3,800 members include police chiefs and sheriffs. “It’s not going to better society. It’s going to denigrate it.”
The question of legalization, which a 2009 Field Poll showed 56 percent of Californians supporting, will undoubtedly color the state race for governor. The two major Republican candidates — the former eBay chief executive Meg Whitman and the insurance commissioner, Steve Poizner — have said they oppose the bill. Jerry Brown, the Democratic attorney general who is also running for governor, opposes the idea as well, saying it violates federal law. And while the Obama administration has signaled that it will tolerate medical marijuana users who abide the law in the 14 states where it is legal, a law authorizing personal use would conflict with federal law.
Supporters of the bill say the proposal’s language would allow cities or local governments to opt out, likely creating “dry counties” in some parts of the state. The proposed law would allow only those over 21 to buy, and would ban smoking marijuana in public or around minors. Stephen Gutwillig, the California state director for the Drug Policy Alliance, a New York-based group that plans to raise money in favor of the measure, said he expected “a conservative implementation,” if passed....
But Dan Newman, a San Francisco-based strategist for the ballot measure, said he expected broad, bipartisan support for the bill, especially among those Californians worried about the recession. “Voters’ No. 1 concern right now is the budget and the economy,” Mr. Newman said, “which makes them look particularly favorable at something that will bring in more than $1 billion a year.” Opponents, however, question that figure — which is based on a 2009 report from the Board of Equalization, which oversees taxes in the state — and argue that whatever income is brought in will be spent dealing with more marijuana-related crimes.
"Judge Calls Electronic Monitoring Excessive Bail in Child Pornography Case"The title of this post is the headline of this piece in the New York Law Journal, which reports on the latest significant sentencing decision of EDNY's Judge Jack Weinstein. Here is how the piece starts:
Eastern District of New York Judge Jack B. Weinstein has held unconstitutional the electronic monitoring of a Brooklyn pizzeria owner awaiting retrial on child pornography charges.
The judge found that the monitoring, mandated by the Adam Walsh Child Protection and Safety Act of 2006, constitutes unconstitutionally excessive bail and violates defendant Peter Polouizzi's procedural due process rights. "The basic defect of the Adam Walsh Act, as applied, is that it imposes a mandatory limit on freedom of an accused without permitting an 'adversary hearing,'" Weinstein held in United States v. Polouizzi (Polizzi), 06-cr-22 [available here].
"Required wearing of an electronic bracelet, every minute of every day, with the government capable of tracking a person not yet convicted as if he were a feral animal would be considered a serious limitation on freedom by most liberty-loving Americans."
Weinstein's opinion marks yet another setback for the government in its prosecution of Polouizzi, who has admitted collecting thousands of images of child pornography. Polouizzi claims he downloaded the photos in the hope of saving the children or perhaps of finding evidence of the brutal rapes he endured as a child.
Since a jury rejected Polouizzi's insanity defense in October 2007 and convicted him of 23 counts of receiving and possessing child pornography, Weinstein has twice ordered the case to be retried. The first order was reversed by the 2nd U.S. Circuit Court of Appeals; the second order is on appeal. After the government filed its most recent appeal, Polouizzi's counsel, Mitchell J. Dinnerstein, contested the conditions of his bail.
Wednesday, Judge Weinstein ordered the discontinuation of the electronic monitoring, finding that it violated both the Eighth Amendment prohibition against excessive bail and the Fifth Amendment right to procedural due process. The judge cited more than half a dozen decisions finding the Adam Walsh Act, which imposes electronic monitoring without discretion, unconstitutional in cases where flight or safety are not at issue.
"Electronic monitoring devices that inhibit straying beyond spatial home property limits, like those used to restrain pet dogs, are intrusive. Their requirement, when mandated and unnecessary, may constitute excessive bail in particular cases," Weinstein wrote.
"Punishment as Suffering"The title of this post is the title of this notable new articleon SSRN from David Gray. The piece jumps into a very important and interesting on-going discussion and debate about subjective experiences of punishment, and all punishment theorists will want to check out the full piece. Here is the abstract:
In a series of recent high-profile articles, a group of contemporary scholars argue that the criminal law is a grand machine for the administration of suffering. The machine requires calibration, of course. The main standard we use for ours is objective proportionality. We generally punish more serious crimes more severely and aim to inflict the same punishment on similarly situated offenders who commit similar crimes. In the views of these authors, this focus on objective proportionality makes ours a rather crude machine. In particular, it ignores the fact that 1) different offenders may suffer to a different degree when subjected to the same punishment; 2) different offenders may have different happiness baselines, which may lead to disparities in absolute, subjective, and comparative happiness-to-suffering ratios among offenders subject to the same punishment; and 3) offenders’ self-reported states of happiness and suffering vary over the course of a sentence, revealing inaccuracies in our objective assessments of severity.
These scholars contend that a more sophisticated and rational approach would be to calibrate punishment according to the amount of suffering produced, trading objective proportionality for proportionality in subjective suffering. Looking forward to a day when advances in neuroscience and psychology will provide us with reliable qualitative and quantitative metrics of suffering, these defenders of punishment-as-suffering (“PAS”) are setting the stage now, arguing that no matter our theory of criminal law and punishment — be we retributivists or utilitarians — we are obliged to dial the machine according to who is in its thrall and to titer both the form and extent of punishment so as to achieve just the right kind and amount of suffering.
This view of the criminal law may strike some readers as troubling. It should. The problem with PAS can be traced to a crucial equivocation between “punishment,” which is a fundamentally normative concept, and “suffering,” which is one of punishment’s contingent effects, and a derivative failure to distinguish between the justification of punishment and the mechanics of penal practice. Once the elided distinction between punishment and suffering is reconstituted, it is clear that PAS has no bite on traditional theories of punishment, which define punishment objectively. To the contrary, most punishment theorists ought to reject outright the claim that punishment should be calibrated according to the subjective suffering it inflicts. That conclusion is bolstered by the uncomfortable outcomes PAS scholars deploy against objective theories of punishment as purported ad absurdum. While admittedly absurd, those results derive not from premises indigenous to traditional theories but from PAS’s distinctive claim that punishment is suffering.
Significant sentencing reform moving forward in South CarolinaAs detailed in this local story, which is headlined "Sentencing reform passes: Bill tries to free up room for the dangerous," significant proposed changes to South Carolina's sentencing laws seem to be close to becoming a reality. Here are the details:
A bill designed to reduce the number of people going to jail in South Carolina for minor offenses and let more people out on parole received key approval Thursday.
The bill approved by the Senate is expected to save taxpayers money while providing improved oversight and training of nonviolent offenders. Proponents said it will ensure there's prison space for high-risk, violent criminals and that they'll serve longer prison terms. "This is a balanced bill that is tough on crime while providing alternative sentencing for those who deserve it," said Sen. Gerald Malloy, D-Hartsville, chairman of a commission that spent more than a year reviewing sentencing policies.
People convicted of nonviolent crimes account for nearly half of the state's 25,000 inmates, and nearly one in five inmates are imprisoned for drug crimes, according to the commission's February report.
Malloy, an attorney, said the bipartisan bill reforms a hodgepodge of laws enacted in recent decades, often as knee-jerk reactions to a particular local crime. Inmates are most commonly in prison on drug charges, burglary, check fraud and driving under suspension, in that order, he said. Providing education and supervision, rather than just throwing low-level offenders in prison, can "turn them from being a tax burden to a taxpayer," Malloy said.
Legislators have embraced the long-overdue changes largely because of the state's budget crunch, he said, noting that incarcerating someone costs $14,500 a year, compared to roughly $2,000 for supervised probation.
The state Corrections Department has been allowed to run a deficit for three consecutive years, as officials balked at the idea of releasing inmates early to make up for budget cuts. South Carolina's inmate population and its cost to taxpayers have soared since 1983, from less than 9,200 costing the state $64 million, to 25,000 costing $394 million. If trends continue, there will be 3,200 more inmates in five years, costing an extra $141 million to house and feed them, and several hundred million more for construction of new prisons, the report said.
March 25, 2010
"Jail or no jail? Fateful day arrives for Arenas"
The title of this post is the headline of this new AP piece focused on the high-profile sentencing question that will be answered at a court proceeding in DC on Friday. Here is some background to help readers opine on the question:
The Washington Wizards three-time All-Star point guard will be sentenced Friday in D.C. Superior Court on one felony count of violating the District of Columbia's strict gun laws. Judge Robert E. Morin will decide whether Arenas does jail time or gets probation. The prosecution and defense teams stated their cases earlier this week in voluminous filings. It's all far beyond anything Arenas imagined on that December morning when he says he brought four guns to the locker room to play a prank on a teammate.
Prosecutors want Arenas to go to jail for at least three months. They point out that he lied repeatedly about why the guns were in the locker room, that he tried to cover up what happened, that he displayed a cavalier attitude about the whole affair, that he knew bringing guns into D.C. was illegal, and that he has a prior gun conviction....
Arenas' lawyers are asking for probation and community service, arguing that he was playing a misguided joke with no intention to harm anybody. They point out that the guns were unloaded, that Arenas' lighthearted comments about the incident were misinterpreted, and that he's a good role model who goes beyond the call of duty when it comes to community service. They add that he was confused about D.C.'s gun laws, and that he's already been severely punished through humiliation and the loss of tens of millions of dollars from canceled endorsements and his suspension without pay for the rest of the NBA season....
The maximum term for Arenas' crime is five years. The sentencing guidelines for someone with his record call for 6-24 months, although those guidelines also allow for probation.
A general survey of similar cases over the last two years in the city indicate that about half of the defendants convicted of Arenas' crime receive some jail time, but the mitigating circumstances vary widely. Arenas' prior conviction — a no contest plea to carrying a concealed weapon in California in 2003 — was already a major strike against him, and the evidence revealed this week that he appeared to instigate a cover-up — as shown in a text message produced by prosecutors — has further damaged his case....
Gun control advocates will be monitoring Friday's developments closely. Paul Helmke, president of the Brady Campaign to Prevent Gun Violence, said he thinks jail time is appropriate in Arenas' case.
I am not at all surprised that gun control advocates are eager to have a prominent person imprisoned merely for possessing a gun and are vocally calling for jail time for Arenas. I am also not surprised, though I am a but disappointed, that gun rights advocates are not providing any support for Arenas or urging that mere gun possess should not be the basis for a term of imprisonment. Arenas, like Delonte West and Lil Wayne and Plaxico Buress and other similar celebrities who get in trouble for problematic gun possession in urban areas with strict gun control laws do not seem to be the type of gun owners that many gun rights advocates are eager to make their "test case" in either the media or the courts.
So, dear readers, you be the judge: what would you give Arenas?
Some related posts on the Arenas case and other celebrity gun possession cases:
"Hacker Gets 20 Years in Largest Identity-Theft Case"The title of this post is the headline of this Bloomberg news report. Here are the details:
Miami man was sentenced to 20 years in prison for charges linked to computer hacking in what prosecutors called the largest identity-theft case in U.S. history.
Albert Gonzalez, 28, who had worked as a federal informant, admitted last year he led an international ring that stole 40 million credit- and debit-card records from U.S. retailers including TJX Cos.,OfficeMax Inc. and BJ’s Wholesale Club Inc. U.S. District Judge Patti Saris ordered Gonzalez to also serve three years’ probation and pay a $25,000 fine, while declining to give him the maximum 25-year sentence prosecutors sought.
Gonzalez, a high-school graduate, pleaded guilty to charges laid out in indictments in federal courts in Boston and New York stemming from his computer hacking....
The 20-year sentence “sends a signal that when you do this kind of stuff, you get a serious sentence,” the judge said....
After Gonzalez was first arrested in 2003, he agreed to become an informant for U.S. Secret Service agents, who paid him $75,000 a year for information on the activities of fellow hackers, CNN reported yesterday. Prosecutors contend that Gonzalez was drawn back into computer-hacking activities while serving as an informant.
The government’s lawyers said in court filings Gonzalez and his confederates created the U.S.’s largest identity-theft ring. “Gonzalez was at the center of the largest and most costly series of identity thefts in the nation’s history,” prosecutors said in court papers....
As part of his plea, Gonzalez agreed to forfeit more than $1.65 million in U.S. currency, a condominium in Miami, a blue 2006 BMW automobile, IBM and Toshiba laptop computers and related equipment, a Glock 27 handgun, a Tiffany diamond ring and three Rolex watches.
More than $1 million of the cash Gonzalez agreed to turn over to the government was discovered outside his parents’ home in Miami, prosecutors said. “You do seem remorseful and you did give up that $1 million buried in your parents’ backyard,” Saris said before sentencing Gonzales in the middle of the 15- to 25-year range that was part of his plea agreement with prosecutors.
Interesting sentencing enhancement case from Washington state
Thanks to How Appealing, here is a little report on an interesting split state Supreme Court sentencing ruling today:
Should someone who is arrested for drunk driving, then taken immediately to jail, where a search reveals a small bag of methamphetamine taped to his sock, be subject to a sentencing enhancement for possessing a controlled substance in a jail or prison? By a vote of 5-4, the Washington State Supreme Court answered "no" in a ruling issued today. The ruling consists of a majority opinion and a dissenting opinion.
"Fast Eddie" Vrdolyak hoping to get a fast pass up to the JusticesAs detailed in this post from January, a split panel of the Seventh Circuit earlier this year reversed a prominent sentence of five-years' probation (plus 2500 hours of community service) for a prominent former Chicago politician in US v. Vrdolyak, No. 09-1891 (7th Cir. Jan. 29, 2010) (available here). After having failed to get the Seventh Circuit to take the case en banc, it appears that politician known as "Fast Eddie" is now hoping to get the Supreme Court to take up his case. This short local press report provides the basics:
Former Chicago Ald. Edward Vrdolyak plans to appeal to the U.S. Supreme Court a federal appeals court decision on his sentence for participating in a real estate scheme, his attorneys said.
Attorney Michael Monico said he was disappointed that the 7th Circuit U.S. Court of Appeals denied his client's petition last week. The petition asked the court to reconsider its vote reversing U.S. District Judge Milton Shadur's sentence of five years' probation for his client's involvement in a rigged Gold Coast real estate deal.
"The Supreme Court has given District Court judges great discretion in sentencing and has ruled that the United States sentencing guidelines are now advisory, not mandatory," Monico said. The appeals court reversed Shadur's sentencing earlier this year.
Though the Supreme Court has taken up a whole lot of sentencing issues in the last decade, they have not yet taken a case that raises all the policy and practice issues that involve the sentencing of prominent white-collar defendants. For that reason (and others), it would be great if SCOTUS took up this case. But, if I had to make a prediction about this case going forward, I would envision the government (and the SCOTUS cert pool) coming up with lots of reasons to justify denying Fast Eddie a further review.
"Shrinking Pa.'s prison population: New Jersey and a few other states have shown the way"The title of this post is the headline of this op-ed in today's Philadelphia Inquirer authored by Marc Mauer and Judith Greene. Here are excerpts:
A new report by the Pew Center on the States shows that while the national prison population declined last year for the first time in 38 years, Pennsylvania's number of inmates increased more than any other state's. Unless policymakers address the factors contributing to these figures, the state risks continued high incarceration costs, which will come at the expense of education and other services.
Especially given the serious fiscal challenges facing the states, gaining control of the prison population is a critical issue for policymakers. Fortunately, recent developments in a few states offer a road map for producing sustained declines in prison populations.
Four states - New Jersey, New York, Michigan, and Kansas - have reduced their prison populations by 5 percent to 20 percent since 1999. They have done so through targeted changes in policy and practice, and with no adverse impact on public safety. Policymakers in these states have responded to the dynamics of their own criminal justice systems, but they have all attempted to reduce both the number of people entering prison and the length of time they stay there....
The four states' sentencing reforms have aimed not just to reduce prison time, but also to better address substance abuse. In Kansas, for example, the Legislature amended the state's sentencing guidelines to divert people convicted of drug possession to treatment rather than incarceration. In New York, the Brooklyn district attorney established a treatment diversion program for defendants who would otherwise have faced mandatory prison terms.
Another key issue is the rate at which states send parole violators back to prison, often for technical violations of parole conditions and not necessarily for new offenses. Here, too, there's much to learn from the four states....
While these developments hold the promise of improving the justice system, we also have to change our overall approach to public safety. Communities that we think of as safe are not those with the most police and the most people going to prison, but rather those with the resources to provide support to families and children.
At a time of national economic distress, we have an opportunity to rebalance our public-safety strategy with that in mind. By strengthening communities' capacity to support the next generation of children, we can create greater opportunity for all while enhancing public safety.
Sixth Circuit affirms habeas relief finding Ohio sentencing scheme Blakely problematicThe Sixth Circuit has an interesting little opinion today in a habeas case coming from the Ohio state courts involving a Blakely challange to an enhanced sentence. The ruling in Villagarcia v. Warden, Noble Correctional Inst., No. 07-3619 (6th Cir. Mar. 25, 2010) (available here), is not especially surprising in light of what is noted in a key footnote of the opinion:
We observe that the instant case presents the unusual fact situation wherein the Ohio Supreme Court has itself concluded that the analysis employed by the Ohio Court of Appeals in rejecting Villagarcia’s claim is contrary to and demonstrates a misunderstanding of Blakely. The Ohio Supreme Court observed that the “Supreme Court of the United States has repeated its holding that ‘[if] a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact – no matter how the State labels it – must be found by a jury beyond a reasonable doubt.’” Foster, 845 N.E.2d at 489 (quoting Ring v. Arizona, 536 U.S. 584, 602 (2002), citing Apprendi, 530 U.S. at 482-83) (emphasis in original).
The Villagarcia opinion also includes an extended discussion of harmless error review in this sentencing context.
Interesting sentencing issues covered as Second Circuit affirms peonage convictionThe Second Circuit has a lengthy opinion today in the intriguing case of US v. Sabhnani, No. 08-3720 (2d Cir. Mar. 25, 2010) (available here), which ends with 20+ pages discussing a variety or intriguing sentencing issues. Here is the opinion's own sumary of its coverage:
Defendants-Appellants Mahender Murlidhar Sabhnani and Varsha Mahender Sabhnani appeal from a judgment of the United States District Court for the Eastern District of New York (Spatt, J.). Following a jury trial, both defendants were convicted on counts of forced labor, harboring aliens, peonage, and document servitude, as well as conspiracy to commit each of the substantive offenses, with Mahender Sabhnani receiving a sentence of 40 months’ imprisonment and Varsha Sabhnani a sentence of 132 months’ imprisonment. The district court further ordered both defendants to pay substantial restitution to their victims and to forfeit their ownership interest in their home, where their victims had been held during the commission of the crimes at issue. On appeal, the Sabhnanis raise challenges to the district court’s refusal to grant the defendants’ request for a change of venue, its refusal to compel an independent psychiatric evaluation of a prosecution witness, its management of the presentation of witness testimony, the content of the jury instructions, the sufficiency of the evidence, the extent of the district court’s inquiry into purported juror misconduct, the calculation of the applicable Guidelines sentencing range, the amount of restitution, and the scope of the property forfeiture. We vacate the district court’s award of restitution to the victims and remand for recalculation of the amount. In all other respects we find Defendants-Appellants’ arguments to be without merit.
"What if Jesus had been tried under Texas law?"
The title of this post is the headline of this item in the Dallas Morning News, which sets up a Q&A interview with Baylor lawprof Mark Osler this way:
What if Jesus were sentenced under Texas laws? Would he still be executed? Would he still be executed? That question led Baylor Law School professor Mark Osler to stage the trial of Christ under the rules of Texas law for a Waco congregation. The death penalty opponent and sentencing guidelines expert summarized his thoughts in a book published last year, Jesus on Death Row. The following is an interview ... with Mark Osler.
Death penalty doings at SCOTUS
Through fewer cert grants in capital cases, the Supreme Court in the last few Terms has stopped being the center of all discussion and debate over the death penalty. However, as detailed in this two SCOTUSblog posts, yesterday the Justices were back to their death penalty ways:
How Appealing also collects media coverage of these SCOTUS happenings here.
March 24, 2010
"Fraudster appeals whopping 845 year sentence"The title of this post is the headline of this new AP piece. Here are the basics:
Financial fraudsters have racked up huge prison sentences before, but few if any white collar sentences top the eye-popping 845 years that New York businessman Sholam Weiss received in February 2000.
Weiss on Wednesday is asking the 11th U.S. Circuit Court of Appeals in Atlanta to review the sentence and order a lower court to give him a full re-sentencing. He claims that the federal government never followed through on its promise to grant him the hearing when he was extradited from Austria.
Prosecutors counter that they never made that promise when they negotiated his return. They say the judge gave him the whopping sentence to ensure the 55-year-old would stay behind bars the rest of his life.
Another vet, claiming PTSD contributed to child porn downloading, gets big sentencing breakThis remarkable local story out of Montana, which is headlined "Man blames PTSD for child pornography downloads," reports on another notable sentence break given to a notable child porn offense. Here are the details, which spotlight many of the hottest issues in current federal sentencing debates:
An Iraq war veteran in Helena, who claimed that post-traumatic stress disorder contributed to his viewing child pornography, was sentenced Tuesday to two years in federal prison, to be followed by 10 years of supervised probation.
Keith Madsen said it was during his deployment in Iraq in 2004 that he began looking at pornography, and when he returned home with an injured arm, depressed and suffering from anxiety attacks, that he escalated his viewing from adult photos to those of children. He would download the images from his work computer at Fort Harrison — where he was a member of the Army National Guard Reserves — onto his iPod for viewing at home.
It was an unusual case in a couple of aspects, including the defense, the plea agreement and the sentencing. The U.S. Attorney’s Office had allowed Madsen, 27, to plead guilty to possession of child pornography, and dropped the more serious charge of receipt of child pornography, which carries a mandatory minimum sentence of five years in prison.
Assistant U.S. Attorney Marcia Hurd said that was done in part because of Madsen’s mental health diagnoses, which include not just PTSD but also long-term anxiety and obsessive-compulsive disorders, and depression. “He’s been given a significant break. We have a policy at the Department of Justice (that in a plea agreement) they must plead to the most significant charge, and I made a special case to give him leniency,” Hurd said.
But she was quick to add that some type of jail term was necessary, not just because by law Madsen could only be on probation for five years or less, but also because of some of the horrific images he downloaded. She said 119 child pornography images were found on his iPod. “These are not just pictures. He wasn’t just surfing the Internet and looking at something that’s not real,” Hurd said. “We are talking about pictures, not of naked teen girls, but pictures of 3-, 4- and 5-year-olds raped and sodomized by adult males and little boys sexually abused by adult females. He kept looking at them and put them on his iPod, and didn’t delete them until he was caught with them.”
Hurd added that Iraq war veterans who had worked on the case were upset that part of Madsen’s defense included PTSD. “They took great offense at the suggestion that service to their country or even PTSD was responsible,” Hurd said. “PTSD is not responsible or an excuse for someone to be involved in child pornography.”
But Fatima Amelkin, a licensed clinical social worker who has treated Madsen since last June, argued that in her opinion, he wasn’t a sexual offender even though an analysis by a federal therapist said he was. She said he has a chemical imbalance that contributed toward his mental health issues, but that he was being successfully treated for those and wasn’t a danger to his family or the community.
“The Veterans Administration didn’t provide him with the appropriate services as he deserved,” Amelkin said, noting that he wasn’t diagnosed with PTSD until five years after his return from Iraq, and that the diagnosis didn’t come from the military, but from her as a private practitioner. “… I don’t see Keith as a classic, or what you would expect a sex offender to be, so I don’t consider him to be a sex offender.”
Friends and family members testified on Madsen’s behalf, saying that his tour in Iraq changed the outgoing, friendly Madsen into someone reserved and quiet, attributed in part to his PTSD....
In letters and testimony, they added that Madsen is a decent man and a hard worker who deserves a second chance. Madsen, who was in tears at times as he addressed the court, professed deep-felt remorse and apologized for the impacts his actions had on those around him. He also noted that he can’t go hunting anymore, will have to register as a sex offender and hasn’t been allowed to pick up his 2-year-old son from day care or even spend time alone with him. “There isn’t one day that passes that I don’t regret what I did,” Madsen said.
He came to the attention of special agents after a routine check of computers at the Veteran’s Administration offices at Fort Harrison on May 14 last year turned up an address of a person accessing child pornography sites on the Internet, Hurd said. It was traced to Madsen’s computer, so as a ruse, Madsen was told on June 2 that the computer had a virus and needed to be replaced. The following day, he told his supervisor that he had been visiting porn sites, then minimizing the pictures while they were downloaded onto his iPod to be viewed at home.
U.S. District Court Senior Judge Charles Lovell said while PTSD is troublesome and that incarceration could possibly harm Madsen, he worried that Madsen wouldn’t get the help he needs in the community, especially due to the five-year probation limitation. “The court has to consider not only the welfare of the defendant, but also the danger to the public and the best manner in rehabilitating the defendant,” Lovell said, adding that the two-year sentence is a significant downward departure from the recommended guidelines of 57 to 71 months for Madsen. “It is perhaps the most lenient sentence this court has imposed in a case of this kind, which is a credit to your background and character.”
This reporting is especially valuable because it spotlights the impact and import of prosecutorial discretion as much as judicial discretion. The federal prosecutor could (and should?) have demanded a plea to a charge that carried a 5-year mandatory minimum term, but she decided this was a "special case." But, problematically, one aspect of what makes this case "special" is the fact that the defendant used VA computers while at work to download kiddie porn.
Of course, as the reporting also shows, this defendant is to suffer some (not especially unique) collateral consequences in addition to his "lenient" prison term in the form of the (scarlet) sex offender label, permanent loss of his Second Amendment rights, and perhaps permanent diminishment of his parental rights. I suspect that these collateral consequences will impact and diminish the defendants qualify of life for decades in ways that the exact number of years he serves in prison will not. And, arguably, the failure of our society to truly take care of our servicemen placed a role in this human tragedy.