March 24, 2010
California continues to struggle with corrections costsThe San Jose Mercury News has this effective new report headlined "California finds that prison costs aren't so easy to cut." Here is how it starts:
The billions of dollars that California pours into its troubled prisons — a number fattened by court-ordered medical spending and sky-high personnel costs — have become an increasingly attractive target for leaders desperate to trim the state's $20 billion deficit.
Gov. Arnold Schwarzenegger in January called for a constitutional amendment that would cap prison spending and put the savings toward public universities. And since last summer, lawmakers have tried to wring more than $2 billion from the Department of Corrections and Rehabilitation, once budgeted for $10 billion.
But despite officials' attempts to clamp down after watching costs double over the past decade, some corrections spending is proving impervious to the budget ax. Already, hundreds of millions in expected savings have failed to materialize, partly because one big expense — more than $1.5 billion for inmate medical care this year — is under the watch of a federal receiver, not the state.
It's also because some legislators, fearing the "soft on crime" sobriquet, balked at cost-saving measures last year that might have released thousands of the state's 160,000 inmates. That alone, the Department of Finance says, has cost nearly $600 million.
March 23, 2010
"Apprendi Land Becomes Bizarro World"The title of this post is part of the cool title of this new paper now on SSRN from Benjamin Priester. The full title of the piece is "Apprendi Land Becomes Bizarro World: “Policy Nullification” and Other Surreal Doctrines in the New Constitutional Law of Sentencing," and here is the abstract:
Imagine a final exam essay answer in constitutional law which sets forth doctrinal principles like the following: Decision-makers should preferably give vague explanations grounded in moral philosophy rather than specific explanations connected to particular findings. Appellate review of trial court decision-making is unconstitutional. Courts are entitled to substitute their own policy preferences for those enacted by the legislature on questions of non-constitutional law; in fact, it is probably unconstitutional to enact legislation expressly compelling courts to follow the legislature’s non-constitutional policy preferences. One might expect such an exam answer to receive an F – but if the exam question involved the United States Supreme Court’s new constitutional law of sentencing, then the student has probably earned an A. Welcome to Apprendi Land – which has now become Bizarro World. This article examines and criticizes these and other surreal doctrines in the Court’s decisions, and argues that the Court must abrogate its expansion of Apprendi doctrine to restore most issues of sentencing policy to non-constitutional status.
Federal prosecutors recommend 3-month prison sentence for gun possession by Gilbert ArenasAs detailed in this new post at a Washington Post blog, "Prosecutors recommended on Tuesday that Wizards star guard Gilbert Arenas spend three months in jail for bringing guns into the Verizon Center locker room." Here's more:
Prosecutors also proposed that Arenas serve three years probation and perform 300 hours of community service. The recommendations came in a sentencing memo to the court that is required in most criminal cases. Arenas's formal sentencing is Friday.
In a scathing 61-page memo, Assistant U.S. Attorney Christopher R. Kavanaugh wrote that his office is seeking jail time primarily because Arenas initially provided inconsistent stories about why he had the guns in the locker room and that he never showed any remorse for his actions. "The defendant's conduct since the time of the incident establishes that he has shown little genuine remorse for anything other than how this incident may affect his career," Kavanaugh wrote.
"If any other individual without fame, power and the wealth of this defendant, brought four firearms into the District for the purpose of a similar confrontation," the prosecutor wrote, "the government would seek their incarceration and the court would almost certainly give it."
Arenas pleaded guilty on Jan. 15 in D.C. Superior Court to a felony count of carrying a pistol without a license. As part of a plea deal, prosecutors agreed not to ask for more than six months in jail. He has been free pending sentencing.
Superior Court Judge Robert E. Morin is not bound by the plea agreement -- a fact he emphasized in court in January -- and could sentence Arenas to anywhere from probation to a maximum five years in jail. The former all-star was released after agreeing to surrender his passport and not possess any handguns.
The charges stem from the now-infamous incident in the Wizards' locker room at Verizon Center on Dec. 21. At the hearing in January, Assistant U.S. Attorney Chris Kavanaugh filled in some of the details of the confrontation between Arenas and teammate Javaris Crittenton, without mentioning Crittenton by name.
Some related posts on the Arenas case and other celebrity gun possession cases:
A sentence of 15 years for trying to break into jail!?!?This local story from Florida, which is headlined "After outburst, man who tried to break into jail gets 15 years," reports on a remarkable case with a remarkable (final?) sentencing chapter. Here are the basics:
Obscenities and claims of injustice marked a hearing Monday for a Cocoa man sentenced to the maximum 15 years in prison for violating probation in a manslaughter case by trying to break back into the Brevard County Detention Center.
Circuit Judge George Maxwell and court deputies called for order as the 25-year-old Sylvester Jiles broke into a profanity-laced tirade andwas led out of the courtroom. " You have no right to disrupt this courtroom and I admonish you to not do it again," Maxwell told Jiles when he was brought back to complete the sentencing. "You've got a family that loves you and there's another family involved. Outbursts like that can lead to people getting hurt, something you seem to not have learned."
Several of Jiles'supporters stormed out and picked up the outburst in the hallway, where they added racial slurs and continued to yellat the judge, the manslaughter victim's family and media until they stepped onto an elevator to exit the building.
Jiles originally was sentenced to eight years of probation under a plea deal in the 2007 shooting death of 19-year-old Dustin Prouse. On Aug. 31 of last year, three days after his release, he returned to the jail and begged deputies to take him back because he feared for his life.
Officials said they told him to file a police report, but he scaled one fence and was attempting to scale a second one, topped with razor-sharp wire, when he fell and suffered deep cuts. Court documents filed after the incident said Jiles violated his probation by trespassing on jail property and resisting an officer....
When Jiles heard he would serve the maximum, minus credit for time served, he became upset because the judge wouldn't allow him to speak. The judge said he heard Jiles' testimony during a January hearing.
Jiles apologized when he was returned to the courtroom. "I just wanted to say I'm not saying I'm the shooter. I only pled guilty to it," he said. "I'm not going against your sentence, sir. You say 15 years. It is what it is."
"Russia to Alter System of Penal Colonies"
The title of this post is the headline of this fascinating piece from this morning's New York Times. Here is how it starts:
In Russian prisons, the inmates are divided into barracks housing a hundred or so men without regard to the severity of their crimes. At night, a guard locks the door and walks away, leaving first-time offenders and people convicted of nonviolent crimes to fend for themselves in a crowd of gang members, hit men and other career criminals.
Beginning this year, however, first-time offenders may no longer have to live in fear. In the first major effort to upgrade a prison system that has changed little since Stalin established it more than 70 years ago, career criminals will be separated from the general prison population and housed in new prisons with cellblocks, rather than barracks.
President Dmitri A. Medvedev, a lawyer by training who has championed an overhaul of the justice system, is pushing the measure to first break up the culture of barracks life and then to do away with common inmate housing almost entirely.
Common barracks are unusual outside the former Soviet Union and parts of Africa, according to a London-based advocacy group, Penal Reform International. Western European and American correctional institutions typically rely on large cellblocks, with a few inmates to a cell.
Yet the vast majority of Russian prisoners — 724,000 out of a total prison population of 862,000 — still live in freestanding barracks, rough-hewn, low-slung buildings of wood or brick encircled by barbed wire, usually in a remote place. Low-cost and high-volume, they are modest upgrades of the camps of the 1930s to 1950s and hold the second largest per capita inmate population in the world, trailing only the United States.
The overhaul calls for a three-stage unwinding of the barracks housing system and the abolition of all 755 penal colonies, what remains of Stalin’s gulag, by 2020. Under the plan, some sites will be renamed “settlement colonies,” a sort of minimum security prison. Hardened prisoners will be moved to cellblocks, though only just over 2,700 inmates live in cells in Russia today.
In the first stage, recidivists will be put in separate colonies apart from the general prison population. So far, officials have relocated 64,000 of 149,000 prisoners scheduled for transfer. By 2016, prison officials say, they intend to separate the most violent first-time offenders from petty criminals, and by 2020 move them and the recidivists into new prisons with cellblocks. After that, the category of “correctional colony” would cease to exist in the Russian penal system.
I will try not to forget the enduring campaign themes of hope and change while reflecting on the fact that Russian President Medvedev appears to be much more interested in prison reform than US President Obama. Of course, decades ago when the US prison population was much smaller than Russia's, perhaps this reality would not be so remarkable or telling. But the United States, a nation that Abraham Lincoln famously described as being "conceived in liberty," is now the world's leader in imprisoning its own population by a considerable margin. Consequently, it is hard not to be sad and disappointed that more prison change is being right now pioneered by Russia's president than by America's.
Different editorial perspectives on crack reform compromise
Anyone inclined to conclude and lament that the ("left-wing") media always see issues the same way should be sure to check out the distinct editorials from the New York Times and the Washington Post concerning last week's compromise bill passed by the Senate to cut the quantity ratio of powder to crack triggering statutory mandatory minimums to roughly 18:1 (basics here and here):
- From the NY Times here, we get "Race and Mythology in Drug Laws"
Key quote: "The [Senate] standard is still irrational, if significantly less so than current law. It’s imperative for the House to fight for the 1-to-1 ratio when it takes up the issue. Otherwise, the law will remain tinged with racism even if relative harshness is cut back."
- From the Wash Post here, we get "Sober sentencing for cocaine possession"
Key quote: "[Crack/powder] parity ignores important if not huge differences between the two forms of the drug, including a slightly higher risk of addiction with crack, as well as a faster rate of physical deterioration users experience. This approach has also been politically untenable and unlikely to attract needed Republican support to move the bill quickly -- an important factor that House members should keep in mind when taking up the measure. The Senate on Wednesday unanimously passed a smart and strong compromise that the House should embrace."
March 22, 2010
Interesting new paper on prosecutorial discretion in "easy" casesThanks to SSRN here, I see that Josh Bowers has a very interesting looking new paper concerning prosecutorial discretion. The piece is titled "Commonsense Discretion," ans here is its abstract:
Charging discretion is no monolith. Instead, prosecutors consider three sets of reasons to decline or pursue charges: legal reasons, administrative reasons, and equitable reasons. The conventional wisdom is that prosecutors are best positioned to evaluate these reasons. Consequently, prosecutors are granted almost unfettered charging discretion. More narrowly, when prosecutors decline or pursue charges for equitable reasons, they exercise their prerogative unchecked. This is defensible only if prosecutors are most competent to exercise equitable discretion. That question is almost never asked or critically analyzed. Instead, case law and commentators justify prevailing institutional design with reference only to uncontroversial understandings that prosecutors know most about legal merits and strategic priorities.
In fact, several reasons exist to believe that prosecutors are ill suited to consider the normative merits of potential charges. First, professional prosecutors fail sufficiently to individualize cases, lumping them instead into legal boxes. Second, professional prosecutors prioritize institutional concerns over equitable particulars. Notably, prosecutors are least competent to adequately consider the equities in the precise types of cases in which commonsense discretion matters most. Specifically, in the petty-crime context, absolute enforcement of expansive code law is both undesirable and impossible, and, consequently, measured exercises of equitable discretion are warranted and anticipated. Put simply, petty-crime enforcement should turn on thoughtful evaluation of equitable considerations, such as relative blameworthiness. Legal guilt, by contrast, is often peripheral (or, in any event, presumed). In this way, easy legal cases may raise tough normative questions. And prosecutors have no special claim to know the answers, as the novel data that I provide help to show.
Notable NYU event on solitary confinementI am pleased to see here that an important prison issue which I fear gets too little attention, solitary confinement, will be the focus of a panel discussion hosted by New York University’s Wagner’s Students for Criminal Justice Reform on Tuesday March 23, 2010. As detailed here, the panel discussion is titled “Segregation and Solitary Confinement: Cruel and Unusual Punishment?”, and the panel includes a host of leading experts on the topic. Folks can RSVP here, and this text describing the issues to be covered comes from the event's promotionional materials:
More than 25,000 people are confined in solitary confinement in the United States. An additional 50,000 to 80,000 are kept in restrictive segregation units, many of them in isolation.
Prison officials say people are placed in isolation because they are the most violent, dangerous prisoners and that this practice protects other vulnerable populations. Opponents of solitary confinement assert that these policies are a form of cruel and unusual punishment and torture. People subjected to these conditions lack human contact, which can have a severe negative impact on a person’s mental state, leading to serious mental illnesses, such as depression and in some instances — death.
"Ex-Offenders and the Vote"The title of this post is the headline of this editorial in today's New York Times. Here are excerpts:
Millions of ex-offenders who have been released from prison are denied the right to vote. That undercuts efforts to reintegrate former prisoners into mainstream society. And it goes against one of democracy’s most fundamental principles: that governments should rule with the consent of the governed.
Congress held hearings last week on a bill, the Democracy Restoration Act, that would allow released ex-felons to vote in federal elections. It would also require the states, which administer elections, to give them appropriate notice that this right has been restored.
Voting rights are largely set by state law, and many states prohibit people who have been convicted of crimes from voting in state and federal elections. Currently, about four million Americans who have been released from prison are disenfranchised in federal elections by laws barring people with felony convictions from voting.
Many of the laws disenfranchising former criminals date back to the post-Civil War era and were used to prevent freed slaves from voting. These laws still have a significant racial impact. About 13 percent of black men in this country are denied the right to vote by criminal disenfranchisement laws, more than seven times the rate for the population as a whole.
There is no good reason to deny former prisoners the vote. Once they are back in the community — paying taxes, working, raising families — they have the same concerns as other voters, and they should have the same say in who represents them.... For reasons of both principle and sensible social policy, Congress should step in and give ex-offenders the right to vote.
Relatedly, The Sentencing Project has lots of coverage and lots of links here concerning the hearings on the bill mentioned above and concerning other felon disenfrachisement news.
Big indigent defense lawsuit about to be heard by New York Court of AppealsVia the New York Civil Liberties Union, I received a press release headed "NY’s Highest Court to Hear Argument in Case that Charges State with Failing its Constitutional Duty on Public Defense." Here is part of the text:
New York’s highest court will tomorrow hear arguments in a New York Civil Liberties Union case that charges New York State with failing its constitutional duty to provide effective counsel to poor New Yorkers accused of crimes.
The class action lawsuit, filed in 2007 by the NYCLU and the law firm of Schulte Roth & Zabel LLP, charges that a lack of adequate funding, oversight and statewide standards is denying New Yorkers their right to competent and timely legal representation, a violation of the U.S. Constitution, the state constitution and the laws of New York.
The lawsuit, Hurrell-Harring et al. v. State of New York, was filed on behalf of 20 criminal defendants in Onondaga, Ontario, Schuyler, Suffolk and Washington counties who have encountered a dysfunctional public defense system. The plaintiffs seek reform on behalf of all defendants who are or will be charged with felonies, misdemeanors or lesser offenses and who cannot afford a lawyer.
For background about the NYCLU’s case and to view the complaint, visit this link.
Long ago, I wrote an article suggesting that the goal of disparity reduction sought by structured sentencing reforms can (and often will) be undermined by a justice system with poor quality (or poor funding) of defense attorneys. And, as the federal sentencing system has moved to an advisory mode, I have been seeing additional and often tangible links between the nature and quality of defense represention and sentencing outcomes.
A few criminal justice cert grants from SCOTUS today
This post at SCOTUSblog provides all the details on cert grants news from the Supreme Court this morning, including these descriptions of the two cases taken up by the Justices that involve criminal justice issues:
"Argentina province OKs chemical castration for rapists"The title of this post is the headline of this recent CNN piece. Here are the details (with emphasis added by me on one key aspect of this story):
Officials in Argentina's Mendoza province have authorized chemical castration for rapists after a significant increase in sexual assaults last year. Mendoza authorities convened a scientific legal committee and authorized the voluntary chemical castration by decree.
"By using medication that lowers the person's sexual desire and with psychological treatment, the person can be reintroduced into society without being a threat," Mendoza Governor Celso Jaque said. Eleven convicted rapists in the province have agreed to the treatment in return for reduced sentences.
Several members of the legal committee said the treatment must be voluntary or it would violate international law and Argentina's constitution....
The term "chemical castration" is a misnomer because the practice involves medication, not surgical intervention. Its effectiveness also stops when treatment is discontinued.
The practice in Mendoza follows measures adopted in several European countries and eight U.S. states: California, Florida, Georgia, Montana, Oregon, Wisconsin, Louisiana and Iowa. Depending on the success of the program in Mendoza, the rest of Argentina could follow suit, officials said.
Though I suspect there could be considerable support for broader use of chemical castration for sex offenders in the United States, I wonder if folks would support shorter prison terms in conjunction with this use of a punishment alternative. Similarly, I fear that folks who complain about some prison sentences being too long would also complain about chemical castration being a means to bring down prison terms for certain sex offenders.
Some older and newer related posts on chemical castration:
- Isn't chemical castration worth trying if it works?
- "Killing puts 'castration' on French agenda"
- Alabama legislators discussing castration and other novel punishments for sex offenders
- Are there reliable data on the efficacy of chemical castration?
- "Europeans Debate Castration of Sex Offenders"
- Huff Post commentary urging stiffer sentences and chemical castration for sex offenders
SCOTUS back in action, with lots of new Stevens speculations
The Supreme Court is back to work this morning, though this SCOTUSblog post spotlights that we are not going to get opinions in argued cases until Tuesday and that the only criminal justice case on the docket this week is on Wednesday with Magwood v. Culliver (09-198) on successive habeas claims. Though perhaps getting off to a slow criminal justice start, I will be watching SCOTUS closely the next few weeks because two big cases are to be argued next Tuesday (Dillon on crack modification proceedings and Barber on good time calculations) , and because I anticipate that we will be getting some opinions on some of the big criminal justices cases argued back in 2009 before the end of March.
Meanwhile, if persons cannot wait to start speculating about where the Supreme Court and its membership could headed in the months and years ahead, there are these notable new pieces talking about what might happen if (when?) Justice Stevens announces his retirement soon:
- "White House Said to Have Short List Ready for Justice Stevens' Slot" from the National Law Journal
- "Sizing up the Supreme Court after Justice John Paul Stevens retires" from the Los Angeles Times
March 21, 2010
Notable op-ed assailing Texas judge's peculiar recent death penalty rulingProfessor Adam Gershowitz has this notable op-ed in the Houston Chronicle, which is headlined "Rethink death penalty: Judge’s ill-timed ruling invites irrationality in public’s views about capital punishment." Here is how it gets started:
State District Judge Kevin Fine sparked controversy recently when he ruled that the death penalty was unconstitutional under Texas law. Although he subsequently rescinded his ruling, the damage was done. By overstepping his powers, Fine gave death penalty advocates exactly what they were looking for: another example of a “judicial activist” working to block the public's desire to enforce capital punishment.
When voters hear that a low-level judge has moved to strike down capital punishment, they are likely to conclude that judges micromanage every aspect of death penalty cases and provide careful oversight to guarantee that no innocent people will be executed in Texas. Nothing could be further from the truth.
Appeals in death penalty cases almost never focus on whether the defendant is innocent or whether he or she deserves to die. Rather, appellate judges are obligated to spend their time looking at more mundane process issues, such as whether jury selection was properly conducted or whether the prosecution complied with its discovery obligations and shared necessary information with the defense.
Even if Fine eventually moves to forbid prosecutors from seeking the death penalty in his court, that ruling will be promptly appealed and immediately reversed. If his objective was to throw a wrench into the machinery of death row, his actions actually produced the opposite result. Ultimately, his impulsive ruling will harm those who are seeking to end the death penalty, and it will prevent the public from having a real discussion about whether it makes sense to continue to have capital punishment in the state of Texas.
The problem with capital punishment is not that it is unconstitutional. If it were, how could dozens of federal and state judges have allowed Texas to execute 450 people over the past 30 years? The real problem with the death penalty is that it is terrible public policy that the voters of Texas should reject.
Latest new federal sentencing statistics from the US Sentencing Commission
The US Sentencing Commission has some fresh new sentencing data now up on its website. The USSC's latest data report, which can be accessed here, is described this way:
First Quarter FY10 Quarterly Sentencing Update: An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during the first quarter of fiscal year 2010. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published March 17, 2009)
The new data continue to show a very slow and steady migration away from guideline ranges: these data show that now barely 55% of all federal sentences are within the calculated guidelines range; prosecutors, who now requested departures in over 26% of all cases, continue to increase be the primary driving force behind below-range sentences.