March 30, 2010
"Obama backs secrecy for Bush pardon denials"The title of this post is the headline of this fascinating item posted by Josh Gerstein over at Politico. Here are the details
While President Barack Obama has vowed to operate the most open and transparent administration in history, he does not appear to be seeking any advantage over his predecessor when it comes to letting the sun shine in on decisions about presidential pardons.
In a brief filed Friday in a federal appeals court in Washington, the Obama Administration is fighting for the right to deny a journalist’s request for the names of 9200 individuals denied clemency by President George W. Bush and, by implication, the names of those who may be denied pardons by Obama down the road.
“Pardon and commutation applicants have a substantial privacy interest in nondisclosure of the fact that they have unsuccessfully sought clemency,” the Justice Department wrote in the brief opposing the request by former Washington Post reporter George Lardner Jr. “The substantial privacy interest of the clemency applicants outweighs the negligible public interest in disclosure of their names.”
The odd twist to this case is that while the Justice Department is fighting to keep the list of denied pardon applications secret, it has long confirmed the names of pardon applicants and the status of the applications, including any denial, when asked about specific individuals. However, DOJ contends that disclosing that information about all pending applicants en masse would amount to an unjustified invasion of privacy.
Last July, a district court judge ruled in favor of Lardner and ordered that the list of rejected applicants should be made public. But the Justice Department appealed. “The fact that [the Office of the Pardon Attorney] freely releases the names of unsuccessful clemency applicants to the general public in certain circumstances casts significant doubt on OPA’s claim that its records reflecting this information should be treated as confidential law enforcement records that must be protected,” Judge Colleen Kollar-Kotelly wrote.
However, in its appeal, DOJ argues that ruling was wrong and even suggests that disclosing the list of nixed names could lead to violence against applicants. “Disclosure of the fact that individual offenders have unsuccessfully sought pardons or commutations unquestionably will re-stigmatize the applicants and draw renewed attention to their offenses, thereby harming their prospects for successful rehabilitation and reintegration into the community, as well as possibly subjecting them to the risk of retaliation,” the department wrote....
“The names of unsuccessful applicants, standing alone, reveal virtually nothing about the clemency process and shed no light whatever on the reasons for the denials or the manner in which the pardon and commutation system works…..nor is there any reason to believe that the list would reveal the presence of improper ethnic considerations in the clemency process,” the brief says....
The names of those granted pardons or commutations by presidents have been made public, at least in recent decades, and are posted on the Justice Department website, even though making those decisions public can also embarrass recipients by publicizing a long-ago transgression.
However, there has been no such disclosure during the Obama Administration for a simple reason: after more than 14 months in office, the president has yet to issue a single pardon or commutation.
March 29, 2010
Is "medical parole" the best way to deal with California's high prison costs?The question in the title of this post is inspired by this notable new article in the Sacramento Bee, which is headlined "Watchdog proposes medical parole to cut California prison costs." Here are highlights from the interesting article:
The man in charge of upgrading the quality of health care in California's overcrowded prisons has an idea for taxpayers: medical parole. J. Clark Kelso, the federal court-appointed prison health receiver, suggests that California could stop spending millions of dollars a year if officials could grant parole to a handful of inmates who are comatose or otherwise severely incapacitated.
"I am keenly aware, as are the courts," Kelso said, "that a dollar that we can save in the prison health care program is a dollar that can be spent on other important priorities for the state, such as education, money for children, the elderly, other health care programs."
An aide in Kelso's office said that, conservatively, the prison system could save $213 million over five years by paroling just 32 inmates identified as severely incapacitated. Twenty-one of those 32 inmates are in nursing facilities or hospitals outside prisons, which requires spending for expensive guard time – including overtime – as well as huge health care costs.
These 21 inmates' average annual health care and guard costs total more than $1.97 million apiece – a total of $41.4 million a year for 21 individuals, said Kelso aide Luis Patiño. "These people are not even capable of realizing they're being punished," Patiño said. "Society becomes the victim, because it's paying the cost."
The 11 other severely incapacitated inmates are inside prison health centers, where their annual medical bills average $114,395 each. Kelso's office supplied these details after he and Sen. Mark Leno, D-San Francisco, announced March 17 that Leno had introduced a bill to create medical parole.
Leno said 1,300 inmates' health care costs exceed $100,000 a year, and that up to 700 prisoners could qualify for a possible medical parole under his bill.... With medical parole, Leno said, California's prison system would save by transferring medical costs to federal programs and eliminating guard costs. Prisoners are not eligible to enroll in federally funded Medi-Cal or Medicare, but parolees are.
California legislators passed a proposal similar to Leno's in 2003. Then-Gov. Gray Davis vetoed it, instead signing a bill to allow prison officials to contract space for inmates at non-prison health facilities. Davis called it "a safer, humanitarian and more cost-efficient alternative to parole." Spokesman Aaron McLear said Gov. Arnold Schwarzenegger had no comment on Leno's draft proposal. The governor has backed another proposal that would give the University of California control of the prison health care system as a way to cut the costs of treating chronically ill inmates....
But some lawmakers are skeptical. State Sen. George Runner, R-Lancaster, generally a tough law-and-order legislator, said he thinks "it's an illusion" that such large savings could be achieved with medical parole. "Part of the problem is figuring out who this group is," he said. "If someone is truly vegetative then maybe there is a reason to consider this."...
Leno said his Senate Bill 1399 would apply narrowly to certain inmates who cannot function on their own, including inmates bedridden with end-stage Alzheimer's or on ventilators or feeding tubes. He cited the example of an inmate with dementia, paralysis and no speech or bladder control whose two years of outside care has cost $350,000 a year, not counting guards. Another inmate on a ventilator, Leno said, has cost more than $500,000 in the past 18 months. Medical bills for a third inmate with end-stage cardiac disease and other complications have topped more than $1 million a year, he said.
Runner noted that California already has a "compassionate release" policy for prisoners severely incapacitated or near death. But such releases are rare....
Susan Howley, director of public policy at the National Center for Victims of Crime, said that, if California allows prison officials to grant medical parole, victims' concerns should be heard in each case. "It is especially important when you have a situation like this," Howley said, "where budget concerns are driving proposals. When you say it's because of budgets," she said, "that really rubs victims the wrong way – that justice is too expensive."
Leno said he doesn't want to minimize crime victims' suffering. But legislators are facing tough budget choices, he said, and must find ways to contain prison costs, which are consuming nearly 11 percent of the state general fund. "I, for one," Leno said, "would much rather save the jobs of 35 teachers, rather than continue to incarcerate 10 comatose inmates at a quarter of a million dollars a year."
He said 36 other states have a version of medical parole, including Texas, which is putting about 100 to 170 inmates a year into that status.
Valuable recent reviews of federal prision program realities
I often refer people to Alan Ellis, a past president of NACDL who specializesin prison matters and postconviction remedies, whenever I am asked a hard question about federal prison programs. Alan is a co-author of the Federal Prison Guidebook, and he recently sent me two of his recent writings about federal prison programs for posting here.
Alan's recent article in The Champion concerns the federal RDAP program an is titled "Changes to the BOP Residential Drug Abuse Program." It can be downloded here: Download Changes_to_the_BOP_RDAP
Alan's recent article in Criminal Justice concerns federal prison medical facilities and is titled "BOP Health Care: What You (and Your Clients) Need to Know." It can be downlaoded here: Download ABA- BOP Healthcare 3
Despite three strikes against prosecutors, prosecution of alleged murderer still not out
With my sports brain now turning from March Madness to Opening Day, I could not help but think of a sports metaphor to describe this morning's ruling in the Sixth Circuit habeas case of Girts v. Yanai, No. 08-4592 (6th Cir. Mar. 29, 2010) (available here). Here is how the the opinion starts:
Petitioner Roberts Girts appeals the district court’s decision not to bar a pending third trial following the state’s failure to retry Petitioner within the time provided by this Court’s conditional grant of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has twice been convicted of the 1992 murder of his wife. Both convictions were subsequently overturned based on prosecutorial misconduct. The first conviction was overturned by the state court on direct appeal. The second conviction was overturned by this Court in Girts v. Yanai, 501 F.3d 743 (6th Cir. 2007). In that decision, Petitioner was granted a conditional writ of habeas corpus calling for the release of Petitioner from custody if he was not tried within 180 days. Girts was not tried within 180 days but was released and has subsequently been rearrested for the same murder. He argues on appeal that a third trial should be barred. For the following reasons, the district court’s decision not to bar retrial is AFFIRMED.
"Disentangling Child Pornography from Child Sex Abuse"The title of this post is the headline of this notable new paper now on SSRN from Carissa Byrne Hessick. Here is the abstract:
Recent years have seen a significant increase in the criminal penalties associated with possession of child pornography. The new severity appears to be premised on arguments that blur the distinction between those who possess images of child pornography and those who sexually abuse children. In particular, sentences have been increased based on arguments that possession of pornography is equivalent to or worse than child sex abuse, arguments that viewing child pornography increases the risk that an individual will sexually abuse a child, and arguments that those who possess child pornography are abusing children undetected.
This Article identifies instances where possession of child pornography and child sex abuse have been conflated, critically evaluates the arguments that promote such conflation, and identifies independent concerns with conflation. Specifically, it argues that blurring the distinction between the two crimes allows us to continue to misperceive child sex abuse as a stranger-danger issue, and that when law enforcement statistics aggregate possession and child sex abuse, then the public may be misled into believing that law enforcement is successfully battling child sex abuse, when that is not the case. The Article concludes that the modern trend of increasing sentences for possession of child pornography ought to be reviewed, and it suggests several possible areas of reform.
March 28, 2010
Details on Dillon as SCOTUS oral argument approachesBecause there is so much that could be said about the crack guideline modification retroactivity issue that goes before the Supreme Court on Tuesday in the Dillon case, I am not sure where to start. The case directly involves or implicitly raises issues of constitutional law, statutory doctrine, administrative powers and policy-based practicalities, with a splash of Booker and a hint of equity thrown in for good measure. Helpfully, this new local piece, which is headlined "Cocaine sentencing inequity goes to top court: Supreme Court will hear Percy Dillon's plea for a substantial sentence reduction," reviews some of the basics effectively while also discussing the defendant whose fate will be before SCOTUS on Tuesday.
"In the Drug War, Drugs Are Winning"The title of this post is the headline of this notable new commentary by Steve Chapman that a helpful reader sent my way. Here are excerpts:
Mexico has been wracked by murders connected to the drug trade. Last year, it suffered more than 6,500 drug-related killings, triple the number in 2007. And 2010 looks worse.
This is not an epidemic of crazed meth addicts slaughtering people at random. It's the byproduct of a war involving narcotics traffickers, who sometimes kill each other, sometimes kill police and soldiers, sometimes kill journalists who report their crimes and sometimes kill innocent bystanders.
So what can the Golden State offer in the way of assistance? Something potentially valuable. In November, Californians will vote on a ballot initiative that would make it legal not only to use marijuana but to grow and sell it.
You may think this would help only by allowing Mexicans to flee northward and escape their troubles in a stoner fog. But it would do more. Mexico is the biggest supplier of cannabis to the United States. Control of that market is one of the things that Mexican drug cartels are willing to kill for.
Legalizing weed in this country would be their worst nightmare. Why? Because it would offer Americans a legitimate supply of the stuff. Criminal organizations would no longer be able to demand huge premiums to compensate for the major risks that go with forbidden commerce. If the referendum passes, some 39 million Californians will have access at lower prices, from regulated domestic producers.
So the drug cartels would see a large share of their profits go up in smoke. Those profits are what enables them to establish sophisticated smuggling operations, buy guns and airplanes, recruit foot soldiers and bribe government officials....
There has always been a demand for mind-altering substances, and there always will be. That's why, despite all the resources the U.S. government has expended on locking up sellers and their customers, drug use is higher today than it was two decades ago. Prohibition is no match for the obstinacy and ingenuity of many human beings....
President Obama's promise of change is inapplicable in this realm. The Bush administration provided hundreds of millions of dollars to help Mexico fight the drug war. The Obama administration intends to keep sending money, the only real difference being that it will go to the police instead of the military.
On a recent trip to Mexico City, Secretary of State Hillary Clinton acknowledged that Americans' demand for drugs helps sustain the Mexican merchants and resolved to address the problem. "We are looking at everything that can work," she said. Well, almost everything. The most viable option is the one that is considered unthinkable. The head of Obama's Office of National Drug Control Policy has said that "legalization is not in the president's vocabulary, nor is it in mine." No, but failure is.
Not sure why comments are not showing up today....
but I've now reported the problem to the magic tech wizards behind Typepad and hope the problem will resolve itself ASAP. My sincere appologies for anyone who has tried to post a comment only to see it vanish into cyberspace.
UPDATE: Here is what the Typepad has now said in response to my inquiries:
We're currently investigating issues with commenting on some blogs. We apologize for the inconvenience -- we know how important commenting is for our bloggers.
Our engineers are working on this and we hope to have this resolved soon -- we will follow up on this ticket as soon as we have more information on this. Additionally we will keep our status page updated with any new information: http://status.sixapart.com
For now, it may help if you or your readers click on the Preview button and then Post.