April 12, 2010
"Public Safety, Individual Liberty, and Suspect Science: Future Dangerousness Assessments and Sex Offender Laws"The title of this post is the title of this notable new paper from Melissa Hamilton now appearing on SSRN. Here is the abstract:
This article argues that the new preventive law focus in sex offender laws is largely ineffective and too costly to personal liberty. The application of sex offender laws involving civil commitment, sex offender registration, and residency restrictions is often based on an individualized analysis of future dangerousness, i.e., the risk the defendant will sexually recidivate. In assessing future dangerousness, experts and courts place heavy emphasis on the use of actuarial tools, basically checklists that mental health experts use to derive statistical estimates of risk. This article provides substantiation that actuarial tools, while enjoying the imprimatur of science, suffer from significant empirical faults.
Yet courts are largely abandoning their gatekeeping roles in accepting the experts’ testimony using actuarial tool predictions of risk without critical review as required by the Daubert and Frye evidentiary standards. The paper theorizes that this is likely a pragmatic strategy considering the current political and public thirst for retribution against sexual predators. But, use of this empirically-challenged science exacerbates the practice of applying sex offender restrictions to inappropriately labeled individuals. Finally, this article takes advantage of the interdisciplinary trend of engaging social science with the law on expert evidence. More specifically, it offers an empirical assessment of future dangerousness opinions within the Daubert/Frye scientific evidence frameworks. The significance of the conclusion reached in this article is clear: if the law continues to rely upon suspect science that results in the wrong individuals being subject to liberty-infringing sex offender laws, then the drain on criminal justice resources will leave the truly dangerous offenders without sufficient supervision at the risk of public safety.
Are federal sentences in many high-profile white-collar cases now much too harsh?The question in the title of this post is prompted by this notable new post by Professor Peter Henning over at the New York Times DealBook under the headline "Sentences Get Harsher in White-Collar Cases." Here is part of Peter's discussion:
The 50-year prison term given to a one-time business mogul, Thomas J. Petters, is the latest in a string of harsh punishments imposed on defendants convicted of orchestrating frauds. Twenty years ago, a sentence of more than five years for a white-collar offender was rare, and most sentences were measured in months, not years.
The sentence meted out to Mr. Petters last week is similar in severity to the 150 years given to Bernard L. Madoff for defrauding investors of tens of billions of dollars in his vast Ponzi scheme, and it is the latest signal that many defendants, at least in high-profile cases, are looking at prison terms that will amount to life behind bars.
Even in less notorious cases, the prison terms for financial crimes have been moving higher, raising questions whether sentences once reserved for violent criminals are appropriate for white-collar defendants....
It is hard to justify sentences like the 50 years imposed on white-collar defendants on the need to protect society from future harm. It is unlikely that someone like Mr. Petters would ever be in a position to defraud investors again, and he presented no physical threat. Whether other potential offenders will be deterred because of the sentence is also open to question, because many white-collar defendants often do not start out planning to defraud investors or customers, but pursue the fraud to avoid disclosing losses from poor business decisions. What can start out as a small lie can burgeon into a huge Ponzi scheme, as Mr. Madoff demonstrated.
The tough sentences may be more of a reflection of the conduct of the individual defendants and their hubris in taking advantage of investors. Courts often express a desire to send a message to the community that financial crimes are deserving of the same significant punishment more commonly given to drug dealers and violent offenders because the harm is just as great....
Whether harsh sentencing is a good thing is open to debate, especially when the cost to society from increased incarceration of criminals strains budgets at every level of government.
Unlike drug or organized crime defendants, white-collar offenders often claim innocence because they were unaware of any wrongdoing, a position that can infuriate a judge. Mr. Petters testified at trial that he was misled by other executives as his company, an assertion that the sentencing judge found was “unbelievable — let’s leave it at that.”
Faced with a distinct lack of contrition, coupled with evidence that the defendant abused a position of authority to mislead investors, judges often feel they need to impose long sentences to let those in the upper reaches of society know that they will suffer the consequences of their conduct.
As more financial frauds come to the surface, do not be surprised to see more white-collar defendants receive long prison sentences. This does not appear to be a trend that will abate any time soon.
"Non-violent offenders clogging state prisons"The title of this post is the headline of this commentary in a local Pennsylvania newspaper. Here is how it starts:
Pennsylvania's prison system continues to be impacted by costly overcrowding, while 20 other states are reducing their inmate populations.
Pennsylvania currently has 51,000 inmates in a system designed to accommodate 43,000. To ease the overcrowding, Pennsylvania has begun sending 2,000 inmates to prisons in Virginia and Michigan at a cost of about $42 million a year. At the same time, the commonwealth is planning to build four new prisons estimated to cost $800 million.
In contrast, New York's inmate population has decreased by 13 percent. New York officials are considering closing one or more prisons. This is attributed to alternative sentencing, intensive drug treatment, and mental health programs.
Michigan has reduced its inmate population by 8 percent. It has closed eight prisons and has 3,260 fewer inmates than it had three years ago. This is attributed to drug and alcohol counseling, and job training, all outside the prison.
What makes Pennsylvania so different from New York and Michigan? In the 1980s and 1990s, tough-on-crime laws such as mandatory minimum sentences were designed to remove drug dealers and violent felons from society. As it has turned out, however, Pennsylvania now has the second-longest sentences for non-violent crimes. Yet the major restorative benefit from incarceration occurs in the first year.
Mandatory minimums have stripped discretion from judges. The majority of Common Pleas judges surveyed a few years ago argued that mandatory minimum sentences for nonviolent crimes were not an effective deterrent. In October 2007 the Pennsylvania House formed a committee of legislators, judges, district attorneys, and public defenders to study mandatory minimum sentencing structures. The findings (available at Web site http://pcs.la.psu.edu) uncovered a number of "unintended consequences."
The Department of Corrections has stated that Pennsylvania's state prisons are exploding with non-violent offenders, which include low-level drug users, drunk drivers, parole violators and shoplifters. The time for studies has ended. The time for reform is now.
April 11, 2010
Is Justice Stevens the greatest (or most significant or ___) sentencing Justice of all time?
Especially given that Justice Stevens has three more months of important work left in his Supreme Court tenure, I am disinclined to spend too much time right now reviewing his extraordinary record and legacy as a Justice. Nevertheless, I think it is worth noting even now that Justice Stevens necessarily has a unique and special place in the history of sentencing jurisprudence. Let me explain.
Justice Stevens will retire this year as the only Justice to have had a central and enduring role in both the revolution of capital sentencing doctrine through the Eighth Amendment jurisprudence of Gregg and its progeny and in the revolution of non-capital sentencing doctrine through the Sixth Amendment jurisprudence of Apprendi and its progeny. For this reason alone, it seems reasonable to call Justice Stevens the greatest -- or the most significant or some other accolade -- sentencing Justice of all time.
Does this sound right, dear readers? Is there a more fitting (and perhaps less controversial) adjective than "greatest" to describe Justice Stevens' work in sentencing cases over the last 35 years?
"Class Matters" gives needed attention to socioeconomic criminal justice questionsNow available via SSRN is this important new piece by Professor Erica J. Hashimoto titled "Class Matters." As its abstract highlights, this piece gives overdue attention to a very important aspect of modern criminal justice realities:
Poor people constitute one of the most overrepresented categories of people in the criminal justice system. Why is that so? Unfortunately, we simply do not know, in large part because we have virtually no information that could provide an answer. As a result of that informational vacuum, policymakers either have ignored issues related to socioeconomic class, instead focusing on issues like drug addiction and mental illness as to which there are more data, or have developed fragmented policy that touches on socioeconomic class issues only tangentially. The bottom line is that without better data on the profile of poor defendants, coherent policy to address socioeconomic class issues simply will not be enacted. Because we lack data on socioeconomic class, we also cannot ascertain whether the system enforces criminal laws equally or whether it targets poor people. The inability to prove (or disprove) class discrimination prevents policymakers from enacting any solutions and leads to mistrust in the system.
This Article highlights the potential beneficial uses of general data on criminal defendants, and data on socioeconomic class of criminal defendants in particular. It goes on to document the data we currently have on socioeconomic class of criminal defendants, and the shortcomings both in our analysis of that data and in our data collection. Finally, the Article provides a roadmap for how states and the federal government should collect and analyze data on the socioeconomic class of criminal defendants.
A (record?) 30-years on death row for Nevada killerThough I am not sure if this marks a record, but this local article notes that a death row defendant in Nevada is marking a notable milestone. The piece is headlined "Inmate on death row for nearly 30 years," and here is how it begins:
Jim Monahan has been wondering a lot in recent days why Samuel Howard is still alive after almost 30 years on Nevada's death row.
"My mother has died. Most of my dad's friends have died, and he continues to live," Monahan said. "He has outlived almost everyone in my family. It makes no sense financially for the state of Nevada to keep paying for these guys to stay alive."
"Executing Howard will not bring my father back," Monahan said, "but may bring a small amount of closure to me and my family."
March 27 marked the 30th anniversary of the day Las Vegas police arrived at 12-year-old Jim Monahan's door and told him, his sister and mother that his father had been found shot to death in a van parked along Boulder Highway.