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April 24, 2010

Shouldn't we celebrate condemn's request that he "would like the firing squad, please"?

I am intrigued by the media attention being given to a Utah death row defendant's decision to select the firing squad as a method for his execution.  Here are the details from this Salt Lake Tribune account:

Shackled at his ankles and wrists and wearing an orange jump suit, Ronnie Lee Gardner leaned forward in his chair Friday and uttered seven words that will place Utah in the international spotlight. "I would like the firing squad, please," Gardner said, his voice choking up.

Choosing bullets over lethal injection may have nothing to do with making headlines for Utah -- the first state to execute a killer after the U.S. Supreme Court reinstated the death penalty in 1976 and the only to allow inmates to die by firing squad. Gardner's cousin, Jerry Hainsworth, said Gardner told him a few years ago: "I'd rather do it that way because I've been shot a bunch of times."

That includes a bullet wound suffered during Gardner's 1985 escape attempt from the since demolished Salt Lake County courthouse.  Police shot Gardner in the neck while trying to apprehend him after he escaped from prison in 1981.  Hainsworth said Gardner was shot in the leg with a .22-caliber rifle as a child, was once wounded in a shootout with a brother-in-law, and once accidently shot himself in the thigh.

After hearing Gardner's request, 3rd District Court Judge Robin Reese on Friday signed a death warrant setting his execution date for June 18.  The judge rejected Gardner's latest appeal of his 1985 death sentence minutes earlier, leaving a Utah Supreme Court appeal or a commutation from the Utah Board of Pardons as Gardner's only chances to avoid death.

Already on Friday opponents of capital punishment were anticipating the intense scrutiny Gardner's death would generate for Utah. "It's so unusual and harks back to a whole other era," said Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C. "This is a spectacle in a sense."

The last Utah inmate to die by firing squad was John Albert Taylor in 1996, who said he selected the method to embarrass the state. Satellite trucks filled a large parking lot near the state prison in Draper.  Jack Ford, who was then the Utah Department of Corrections spokesman, on Friday read a list of reporters, photographers and other media personnel who were on the prison grounds. Ford estimated there were 150 media personnel in all, including major American news outlets and journalists from Great Britain, Denmark, Italy and Australia....

The current Corrections spokesman, Steve Gehrke, said as of Friday afternoon he had already received inquiries from several national media outlets.  Visiting reporters will find the firing squad still has its proponents among Utah lawmakers.

 In 2004, when the Legislature was debating whether to eliminate the firing squad, then-Sen. David Thomas, R-South Weber, and others like him supported keeping the method.  "I know there are a lot who suggest getting rid of firing squad is more humane but we've had the firing squad since statehood and it's effective," Thomas told The Salt Lake Tribune Friday.

Unless and until a state eliminates the death penalty altogether, it seems to me that letting a condemned man selected the method for his execution is more humane (and respectful of his continuing autonomy) that is forcing him to be exectued a particular way.  In addition, given all the evidence developed by the defense bar that a three-drug lethal injection protocol can be botched in a manner which can be torturous for the condemned, this choice by Gardner seems sound and sensible in light of what we have come to learn about his other execution option. 

April 24, 2010 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (62) | TrackBack

"Documentation, Documentary, and the Law: What Should be Made of Victim Impact Videos?"

The title of this post is the title of this interesting new piece on SSRN from Regina Austin. Here is the abstract:

Since the Supreme Court sanctioned the introduction of victim impact evidence in the sentencing phase of capital cases in Payne v. Tennessee, 501 U.S. 808 (1991), there have been a number of reported decisions in which that evidence has taken the form of videos composed of home-produced still photographs and moving images of the victim.  Most of these videos were first shown at funerals or memorial services and contain music appropriate for such occasions. This article considers the probative value of victim impact videos and responds to the call of Justice John Paul Stevens, made in a statement regarding the rejection of certiorari in People v. Kelly, 129 S.Ct. 564 (2008), for the articulation of reasonable limits on the admission of victim impact evidence.

The first part of the article offers an analysis of victim impact videos drawing on the lessons of cinema studies and cultural studies.  The common reception of home photographs and moving images affects the interpretation of victim impact videos.  As a result, impact videos are typically too idealistic and idyllic to be really probative evidence of the victims’ individuality and the impact of their loss on their families and friends. However, impact videos may be particularly important evidence for the members of devalued or denigrated groups who fall outside of generally accepted images of ideal victims. 

The second part of the article deals with an actual case in which the subject of the video was a young Latina mother, felled by domestic violence, whose character was attacked as part of the effort to mitigate her husband’s sentence.  He wound up with a judgment of life without the possibility of parole.  Here the article considers how the victim impact video might have been more probative and the response of the defense to it, more likely to produce a less harsh punishment.

Part three finds greater relevance in a video streamed on YouTube that was based on the written impact statement presented by the young adult son of a homicide victim at the perpetrator’s first parole hearing which was held some 15 years after the murder.  Finally, the conclusion offers recommendations for the admission of victim impact videos.

It is my understanding that the submission by defendants of mitigating video evidence at sentencing is becoming a quite common in some courthouses.  Thus, I wonder if the author here or others who agree that certain kinds of "videos are typically too idealistic and idyllic to be really probative evidence" would also be inclined to preclude defense submission of videos. 

April 24, 2010 in Procedure and Proof at Sentencing, Technocorrections, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Anyone want to discuss the Ben Roethsliberger "sentencing"?

I am not sure if it is even wise to discuss or debate the NFL's six-game suspension of Ben Roethsliberger in sentencing terms. But on the reasonable assumption that some sentencing fans might have some sentencing-relevant reaction to how Big Ben is being punished, I figured I might spice up the final day of the NFL draft by encouraging some football talk in this forum.

April 24, 2010 in Celebrity sentencings, Criminal Sentences Alternatives | Permalink | Comments (4) | TrackBack

April 23, 2010

Go West, Young Pot Dealer!

Go west This local sentencing story out of Buffalo, which is headlined "Pot dealer banished from state by judge," prompted the green-leaf twist on the famous Hoarce Greeley saying in the title of this post.  Here are the details:

Brian M. Renaud, who pleaded guilty Wednesday to his second marijuana felony in six years, is being kicked out of New York State as part of a plea bargain approved by Niagara County Judge Sara Sheldon Sperrazza.

Renaud, 31, of Old Ransomville Road, Lewiston, admitted to a reduced charge of attempted second-degree criminal possession of marijuana. Sperrazza agreed to place him on probation as long as he leaves the state forever.

“Banishment is not something I do lightly or often,” the judge said. “His family has relocated, and he wants to move to California.”

She ordered Renaud to list his house for sale by June 30, the formal sentencing date.

Assistant District Attorney Susan B. Bjornholm said Renaud was arrested Dec. 15, 2008, after police raided his home and found him growing marijuana. They seized 3.84 pounds of it.

Renaud served three years in prison, starting in 2004, after police found 31 pounds of pot, packaged for sale, in another raid.

April 23, 2010 in Criminal Sentences Alternatives, Drug Offense Sentencing | Permalink | Comments (5) | TrackBack

"Ohio considers using Twitter to announce executions"

The title of this post is the headline of this new story out of Ohio.  Here are the details:

A spokeswoman says Ohio's prison system has contemplated using Twitter to announce when an execution has been completed.  However, Communications Director Julie Walburn at the Department of Rehabilitation and Correction says she's concerned that tweeting about an inmate's time of death may be considered in poor taste.

She says the department still hasn't decided how to use Twitter and other social media to disseminate news. Walburn says she's focused on trying to get the word out about executions quickly. When condemned inmate Darryl Durr died by lethal injection at 10:36 a.m. Tuesday, a news release was e-mailed to media outlets one minute later.

I know lots and lots of people consider a state's efforts to execute someone to be in "poor taste," but I see no reason not to use all modern means of communication to report on these efforts.  But perhaps other have different views on taste and technology (which they are encouraged to express in the comments).

April 23, 2010 in Death Penalty Reforms, Technocorrections, Who Sentences? | Permalink | Comments (4) | TrackBack

Questionable(?) DC Circuit ruling on safety-valve burden of proof

The DC Circuit has a very intriguing little opinion this morning in US v. Gales, No. 08-3040 (DC Cir. Apr. 23, 2010) (available here), concerning burdens of proof and eligibility for statutory safety valve relief from an applicable mandatory minimum sentencing term.  At issue in Gales is whether the defendant satisfied the safety valve requirement to truthfully provide all information about his offense: the defendant claimed he did, prosecutors claimed he did not.  After saying it was not clear error for the district court to not believe the defendant, the DC Circuit has to respond to these claim by the defendant about the applicable burdens of proof:

Gales contends that the district court “misunderstood and misapplied” the burden of proof under the safety valve provision, claiming that after the government expressed its doubts to the district court about Gales’ story concerning his drug supplier, the district court shifted the burden of proof to Gales to prove that he had not lied.  Gales argues that such an “impossibly high burden” is not imposed by the law.  Instead he claims that once he made a credible showing that his story was truthful and complete, it was the government’s burden to present evidence showing otherwise....

Gales [further] contends that when the district court stated that the way the safety valve works is for Gales to give the government “the answer they want,” the court was giving the government the same discretion it has pursuant to the Sentencing Guidelines’ substantial assistance provision, U.S.S.G. § 5K1.1.  That is, the district court was allowing the government to prevent him from receiving relief under the safety valve.  According to Gales, this was not Congress’ intent.

Relying on the Circuit's (pre-Blakely) precedent, the panel in Galesrejects the contention that there is any problem with placing the burden on the defendant to establish "his story was truthful and complete."  In other words, the defendant here gets subject to a 5-year mandatory minimum especially because he could not satisfy his burden of proving that "his story was truthful and complete."  

As my quick reference to Blakely above is meant to suggest, there could be possible constitutional arguement (based in the Fifth Amendment more than the Sixth Amendment) against an interpretation of a statutory scheme that functionally increases the defendant's sentence because he fails to prove his admissions of guilt were truthful and complete.  More fundamentally, I think constitutional doubt and rule of lenity statutory construction principles suggest, at least to me, that the proof burden should be on the government in this kind of setting.

April 23, 2010 in Blakely Commentary and News, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (4) | TrackBack

Comdemned battered female murderer raising interesting issues in Tennessee

This notable new local editorial, which is headlined "Bredesen holds complex case; Gaile Owens poses a challenge: Abuse and a co-defendant figure into the fate of a Bartlett woman who hired her husband's killer," spotlights a capital case and debate worth watching in Tennessee. Here are the details:

Gaile Owens, facing trial for the murder of her husband, and co-defendant Sydney Porterfield were offered a deal by a Memphis prosecutor in January 1986: Plead guilty and you won't be executed.

But they both had to agree to it or the bargain was off, and Porterfield refused. Consequently they both went to trial, and Owens may become the first woman to be executed in Tennessee since 1820. She could also be the first woman in America to be executed for a crime committed under the influence of battered woman's syndrome.

Those are among the issues that should factor into the decision before Gov. Phil Bredesen -- whether or not to allow her execution to go forward.  Of course, Bredesen must also consider the brutality of the crime to which Owens, 57, has confessed -- hiring Porterfield to kill her husband.

Ronald Owens was beaten to death with a tire iron in the couple's Bartlett home, a crime that has surely earned Owens a life sentence without parole at least.

Bredesen's decision will stir up passions on both sides, as well as the inevitable comparisons with Mary Winkler, who served less than a year for the 2006 slaying of her husband, Rev. Matthew Winkler of Selmer.

Like Winkler, Owens exhibited symptoms of battered woman's syndrome, a condition described by Memphis psychologist Dr. Lynn Zager, who interviewed her, as "characterized by dominance and control exerted by the husband over the wife, leading to increased entrapment of the wife, or what is called 'learned helplessness.'"...

Owens has maintained that she didn't testify at her trial and never raised the mistreatment defense in order to protect two young sons from the truth about their father's behavior.

Her initial agreement to plead guilty to the offense in exchange for a life sentence supports the claim.  Her co-defendant's refusal to accept the deal turned out to be a mistake -- Porterfield is on death row, as well -- over which Owens had no control.

Nevertheless, Owens has exhausted her legal challenges to the death penalty, and Tennessee has set a Sept. 28 execution date.

With the stroke of a pen, Bredesen can change that. Whatever he does, it will be greeted by second guessing among people who should be grateful their hands don't hold the pen.

So, dear readers, how about giving Gov. Phil Bredesen some help with this tough decision.  Should he grant clemency to Owens?  I am already prepared to predict that he will, but I want to hear comments about whether folks think he should.

April 23, 2010 in Clemency and Pardons, Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (8) | TrackBack

"Federal Judges Still Finding Their Way in Post-'Booker' Sentencing Landscape"

The title of this post is the headline of this new article by Mary Pat Gallagher in the New Jersey Law Journal. Here is how it gets started:

Five years after the Supreme Court held that the federal sentencing guidelines are no longer binding but merely advisory, judges for the most part continue to follow them, though there is an ever-growing divergence, according to the most recent federal sentencing statistics.

But judges are still struggling to grasp the degree of discretion the Court handed back to them in U.S. v. Booker, 543 U.S. 220 (2005), which held that the guidelines violate the Sixth Amendment right to a jury because they required harsher sentences based on facts found by judges rather than jurors.  Instead of tossing the guidelines, the Booker Court said judges must take them into account, along with other factors listed in the sentencing law, 18 U.S.C. 3553(a), including the nature and circumstances of the offense.

There has been an incremental trend away from strict adherence to the guidelines. The statistics, released April 9, show that for the 2009 fiscal year, which ended Sept. 30, 2009, 56.8 percent of sentences were inside the guidelines, down from 61.7 for 2006, the first year after Booker. The percentage also fell in both of the intervening years too, to 60.8 percent in 2007 and 59.4 in 2008.

Though nationally more than half of sentences are within the guidelines, the rate varies widely from district to district -- from a low of 27.8 percent in the District of Arizona to a high of 92.3 percent in the District for the Northern Mariana Islands, both part of the 9th Circuit.  The second lowest and highest rates of fealty to the guidelines were the District of Vermont's 30.8 percent and the Southern District of Mississippi's 80.7 percent.

Circuit averages varied from 39.4 in the District of Columbia Circuit to 71.7 percent in the 5th Circuit. When judges opt not to stay within the guidelines, they are far more likely to go below them.  Nationally, lesser sentences were meted out in 41.2 percent of cases, versus only 2 percent where they were greater.

April 23, 2010 in Booker and Fanfan Commentary, Booker in district courts, Data on sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

April 22, 2010

"Sanford backs plan to put fewer non-violent offenders in prison"

The title of this post is the headline of this new article concerning proposed prison reforms in South Carolina.  Here are the particulars:

Gov. Mark Sanford formally threw his support behind a far-reaching sentencing reform bill Wednesday, a bill that supporters say will reduce the number of non-violent offenders in prison and save the state millions of dollars. "You can only squeeze so much blood from a turnip," Sanford said. "This really is a taxpayer issue."

The 94-page bill is expected to reduce the state's projected prison population enough to negate the need for a new prison -- saving more than $400 million over five years. It's designed to increase training for nonviolent offenders to re-enter society without becoming repeat offenders. And it defines a laundry list of crimes as "violent," including many sex crimes against children.

It also provides, for example, a tiered approach to assault and battery crimes. Currently, the state has 90-day maximum sentences and 10-year minimum sentences and nothing in between, said state Sen. Chip Campsen, R-Charleston.

And it provides a sentence of up to $10,000 and up to 20 years in prison for habitual offenders convicted of driving under suspension resulting in death -- and a fine of up to $5,000 and 10 years in prison in such cases where great bodily injury results. A version of that provision, rolled into the bill last month, has been championed by Spartanburg resident Lily Lenderman for eight years -- ever since she lost her grandson in a wreck caused by someone driving under a suspended license.

"The whole idea about any criminal law is to keep us safe," said Rep. Keith Kelly, R-Woodruff, chairman of the House Criminal Law Subcommittee. "This bill ... is strong by keeping the violent offenders segregated from South Carolina families. At the same time, it's smart, because it's taking non-violent offenders out of the Department of Corrections and puts them on alternative sentencing -- GPS monitoring, for instance, that they pay for, not you or me."...

Corrections Department Director Jon Ozmint said the Sanford administration had been behind sentencing reform since a scaled-down version of it failed seven years ago.  Ozmint said South Carolina currently doesn't have a criminal justice system; rather, it has a patchwork of laws that have been cobbled together over the years.  He and several supporters talked about this bill being ruled by statistics rather than emotions.  "Don't underestimate that first step in this state's history," he said.

April 22, 2010 in Mandatory minimum sentencing statutes, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (9) | TrackBack

Some notable new developments in the Polanski prosecution

As detailed in this AP article, "An appeals court on Thursday denied a petition by Roman Polanski's victim to dismiss the three-decade-old sex case against the director."  Here's more:

The California Second District Court of Appeal denied the petition by Samantha Geimer without comment. 

Geimer's attorney petitioned the court on March 23 to dismiss the case against Polanski, arguing recent changes to California's constitution gave her more rights as a victim to influence the case. "She is a person who is harmed by the maintenance of the prosecution and she wants it to end," Geimer's attorney wrote in the petition for dismissal. "She has not been treated fairly."

Prosecutors argued in a filing last week that voters' decision in 2008 to include a victim's bill of rights in the state's constitution didn't grant Geimer or other crime victims the authority to end prosecutions.

Thursday's ruling is unlikely to have any immediate bearing on Polanski's status.  The Oscar-winning director remains on house arrest at his chalet in the Swiss resort of Gstaad.  The appeals court has not yet ruled on another petition his attorneys filed earlier this year, records show.

Though this ruling is not unexpected, I was somewhat suprirsed by this news report, headlined "Roman Polanski asks President Obama for clemency." Here are the details:

French President Nicolas Sarkozy has hand-delivered a letter to President Obama from fugitive director Roman Polanski, according to a new report. The Daily Beast website claims a French political magazine has published a report stating that Polanski made the private plea for clemency.

The website writes: “In an astonishing act of backroom international diplomacy, French President Nicolas Sarkozy hand-delivered a letter from fugitive Oscar-winning filmmaker Roman Polanski to President Barack Obama last week on the sidelines of the international anti-nuke proliferation summit in Washington, according to a small and little-noticed article embedded in the prestigious French political magazine, L'Express.”...

The letter, which is not directly quoted in the L'Express article, is said to suggest that the two months the aging director spent in a Swiss prison, in addition to the 47 days that he spent in detention in California in 1977, should suffice for the crime of unlawful sexual intercourse he pled guilty to.

April 22, 2010 in Celebrity sentencings, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

"Judge Who Sentenced Madoff Confirmed to 2nd Circuit"

The title of this post is the headline of this report at The Blog of Legal Times, which details that the "Senate today unanimously confirmed Judge Denny Chin to the U.S. Court of Appeals for the 2nd Circuit." I find it both unsurprising and telling that the elevation of a respected and path-breaking jurist from the District Court to the Circuit Court gets flagged by reference to his highest-profile sentencing decision.

April 22, 2010 in White-collar sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Another high-profile murder case ends in a plea deal to avoid the death penalty

As detailed in this AP article, one man "accused in the killing of a student body president at University of North Carolina's flagship campus pleaded guilty to federal crimes Monday, avoiding a death penalty case prosecutors were pursuing."  Here are more details:

Demario Atwater pleaded guilty to several charges, including carjacking resulting in death and kidnapping. Prosecutors agreed to drop their plan to pursue the death penalty and Atwater agreed that he will face a life sentence.

Eve Carson, 22, of Athens, Ga., was found shot to death in the middle of a Chapel Hill street in March 2008. She had been shot five times, including once in the head with a 12-gauge shotgun.

"While we deplore the evil and negligence that led to Eve's death, we agree with the U.S. Attorney's decision to accept the plea agreement," Carson's parents said in a statement Monday released by prosecutors. "We are very grateful for the dedication and hard work that have gone into the investigation and prosecution of this crime."

I hope (but do not really expect) that this plea deal and the similar plea deal that has recently been entered in the Chelsea King murder case (details here) might get more researchers and death penalty debaters to seriously analyze and assess the benefits and burdens of the death penalty as a plea bargaining tool. 

As regular readers know, I see the death penalty's role as a catalyst for resoving difficult murder cases via pleas to lesser sentences to be the least examined (and perhaps most important) justifications for capital punishment.  With the high-profile Carson and King cases both showcasing this issue, perhaps plea bargaining in the shadow of death will get more attention.  Gosh knows it should.

Some related posts:

April 22, 2010 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (15) | TrackBack

Interesting discussion of state juve bind-over procedures

This local piece out of Denver, which is headlined "Children behind bars: Why Colorado is trigger-happy when it comes to sentencing kids like Alan Sudduth as adults," provides an interesting discussion of concepts with allowing state prosecutors to unilaterally decide when to try juvenile offenders as adults.  Here is an excerpt:

The state's current direct-file system was a response to growing concerns about crime in the 1990s, says Kim Dvorchak, chair of the Colorado Juvenile Defender Division.  "What had been happening before was that when a child committed a serious crime, the DA would have to petition the juvenile court judge to waive jurisdiction and send the case to adult district court," she says.  "In the 1990s, crime went up and the judicial transfer process was perceived as cumbersome.  You had to have a hearing.  There were defense lawyers involved and they might get evaluations and evidence.  It was like a mini-trial."

So to get tough on crime, the Colorado Legislature passed a series of laws that allowed prosecutors to bypass judicial hearings and direct file kids fourteen and older for class 1 or class 2 felonies and other crimes.  That gave DA's offices widespread new authority, says Dvorchak. "The direct-file statute relieves a prosecutor of having to prove the child is no longer amenable to treatment in the juvenile system," she explains.  "Even when prosecutors are seeking the death penalty, they have to give notice.  It's a separate sentencing hearing, and a jury decides whether or not to impose the death penalty.  Even that level of due process is absent from the direct-file statute."

Colorado isn't unique in having direct-file laws.  Fourteen states allow district attorneys to direct file kids as adults, something often referred to as judicial waiver.  Some states have even passed mandatory waiver laws, meaning that kids over a certain age accused of first-degree murder have to be charged in adult court, no matter what defense attorneys or prosecutors might say.

But Colorado is unique in one regard, says Dvorchak: "We have no ability to return kids to juvenile court.  The majority of other states that have direct-file or mandatory waiver laws give the child an opportunity to challenge adult-court jurisdiction either at pretrial or at sentencing.  As Colorado's direct-file statute currently stands, there is no provision that allows defense attorneys to challenge the prosecutors' decision that a child should be subject to adult laws instead of juvenile laws."

And that's a problem, says Dvorchak, because once such a decision is made, it can have drastic consequences on the kids involved.  For one thing, as part of a direct file, the prosecutors can decide the youth should stay in adult jail pending the conclusion of the trial. Since these jails don't have separate facilities for juveniles and the kids can't be mixed in with the older inmates, that often means the youths are subjected to 23- or 24-hour cell lockdown. There are often few of the recreation and education opportunities available at juvenile facilities, and the young inmates aren't allowed contact visits with their families.  "The conditions are almost like death row," says Dvorchak.  "They have worse conditions than the adults."

Over the past couple of years, there have been two prominent examples of teenagers committing suicide while incarcerated in local adult jails, one in Pueblo and one in Denver. Dvorchak says there are also major problems with sending kids through court proceedings designed for adults. "Reports have found that prosecuting children in adult court increases recidivism," she says. "Children's experiences going through the adult court proceedings are so negative. In juvenile court, it's a much friendlier atmosphere.  Most people in the juvenile court system are interested in rehabilitating these kids, getting them on the right track.  That's not what happens in adult criminal court. It's a much more sterile environment."

April 22, 2010 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

April 21, 2010

"Becoming Justice Stevens: How and Why Some Justices Evolve"

The title of this post is the title of this interesting new FindLaw commentary by Professor Michael Dorf, which includes a section sub-titled "The Death Penalty: Justice Stevens's Recent Change of View."  In addition, here are the first few paragraphs of the piece's final sub-heading "Does American Law Have a Liberal Bias?":

One factor that undoubtedly plays a role in judicial drift over time is experience. Justices Powell, Blackmun, and Stevens each pointed to the years of death penalty cases in which they participated as crucial factors in their loss of faith in the system of capital punishment. Exposed in detail, and repeatedly, to a broken system, they eventually questioned the premises on which their earlier votes had been based.

That experience may explain drift on the death penalty but it is not a general explanation for leftward drift. One could, after all, describe a Justice who became more conservative on some issue as responding to negative experience with some liberal doctrine–affirmative action, say.  Judicial experience no doubt shapes the views of long-serving judges, but not necessarily in a liberal direction.

In the end, I would offer the following provocative suggestion: More often than not, Justices drift left because American constitutional law itself has a "liberal bias."  The judicial process calls for the evenhanded application of principles.  Yet as Justice Benjamin Nathan Cardozo wrote (when he was a judge on New York's highest court) in his book The Nature of the Judicial Process, a legal principle has a "tendency . . . to expand itself to the limit of its logic."  A Supreme Court Justice who wants to deny the expansion of rights under open-ended constitutional provisions such as the First, Fifth, and Fourteenth Amendments will find himself or herself struggling against the natural pull of the job.

Hmmm.  Not only am I not completely convinced by "provocative suggestion" that American constitutional law itself has a "liberal bias," but I am completely mystified why Professor Dorf did not reference the "open-ended constitutional provisions" of the Second, Fourth, and Eighth Amendments in support of his thesis. 

April 21, 2010 in Who Sentences? | Permalink | Comments (10) | TrackBack

Interesting report on long state sentence for child porn offense

At the same time I have been following closely the debates and controversies over long child porn offense sentence in the federal system, I have been wondering how (and how many) such cases are handled at the state level.  On that front, I found interesting this local story from Florida headlined "Gibsonton man gets 55 years in child porn case."  Here are the details:

A Gibsonton man arrested in a sting in which he thought he was going to have sex with a 12-year-old mentally challenged girl was sentenced today to 55 years in prison. Deputies found thousands of photographs and videos of child pornography on the computer of Carl M. Cocking, 37.

Prosecutors said it was the longest prison term ever handed down in Hillsborough County for downloading child porn. "Every time these images are made, a child has been raped, a child has been victimized and a child has lost its innocence," Hillsborough Circuit Judge Chet A. Tharpe said in imposing sentence. "It has to be stopped."

The sentence was the maximum Tharpe could mete out under a five-page plea bargain Cocking worked out with prosecutors. He was charged with using a computer to solicit child pornography, two counts of attempted lewd and lascivious battery, and 45 counts of possessing more than 10 images of child pornography.

Cocking faced 1,300 years under state law, but prosecutors said 55 years was the maximum sentence under state sentencing guidelines.

Prosecutors took the rare approach of showing some of the images to Tharpe before sentencing. Assistant State Attorney Rita Peters said it was the first time she had done so. The screen was placed so only Tharpe, the lawyers and a detective could see it. The images included the rape of a 2-year-old who cried for her mother during the attack.

"It is beyond my wildest dream that you would watch that and get sexual satisfaction," Tharpe told Cocking. "Thank God the detectives caught you before you acted out because you were going to act out." Tharpe remained visibly upset afterward....

Cocking's lawyers sought to lessen his sentence, saying he has been in constant outpatient therapy since being released on bail and that he didn't flee. Peters said she took the step of showing the images to Tharpe so he could understand the degree of Cocking's depravity. "He needed to be incarcerated," she said.

April 21, 2010 in Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (37) | TrackBack

Notable UK court ruling on human rights attack on sex offender registry

Because I know almost nothing about UK law and procedure, I cannot quite tell if this new story from The Guardian is a just notable or really huge.  Still, its headline alone caught my attention: "Sex offenders win appeal against indefinite inclusion on register; Supreme court backs case of two sex offenders who claim being on register for life without review breaches their human rights." Here is more:

A supreme court ruling today has opened the way for hundreds of sex offenders to challenge whether they should remain on the sex offenders' register for life. The ruling backed a case brought by two convicted sex offenders who challenged their indefinite inclusion on the register without any right to a review, claiming it breached their human rights.

One, who was convicted of rape when he was 11 years old, argued that being on the register had prevented him taking his family on holiday or playing rugby league. The other offender, Angus Aubrey Thompson, now aged 59, was jailed for five years for indecent assault 14 years ago. Their lawyers argued they had been labelled for life without any opportunity to demonstrate they had reformed.

The current legislation says that any sex offender sentenced to a prison sentence of at least 30 months is placed on the register for life and has a duty to keep the police informed of any change of address or travel abroad.

The supreme court decision published today follows an appeal by the home secretary against an earlier appeal court ruling that the lack of any review was incompatible with the European convention on human rights, in particular the right to respect for a private and family life.

Lord Phillips, the supreme court president, said: "It is obvious that there must be some circumstances in which an appropriate tribunal could reliably conclude that the risk of an individual carrying out a further sexual offence can be discounted to the extent that continuance of notification requirements is unjustified."

The judges stressed that the ruling did not mean the sex offenders' register itself was illegal and said that it was entirely reasonable and lawful to monitor someone for life if they were assessed to be a danger to society.

But the judges rejected the home secretary's appeal, saying there was no evidence to show it was impossible to identify which sex offenders had reformed. Home Office research submitted during the case showed that 75% of sex offenders who were monitored over a 21-year period were not reconvicted of any offence.

Mike Pemberton, solicitor for F, who was convicted of the rape of a six-year-old boy when he was 11, said his client wanted a fair chance to show that he had reformed.

In addition to hoping I might be able to get a copy of or link to this opinion, I also hope informed readers might be able to use the comments to tell me whether this is huge news or not really that big a deal.

UPDATE:  A couple of helpful readers have sent me this link to the UK ruling [2010] UKSC 17, and have also confirmed my instinct that this is a big deal.

April 21, 2010 in Collateral consequences, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (11) | TrackBack

New LDF report on the impact of felon disfranchisement laws

I received via e-mail a press release from the NAACP Legal Defense and Educational Fund linking me to a new report on felon disenfranchisement.  Here is the start of the press release:

Today, the NAACP Legal Defense and Educational Fund (LDF) released Free the Vote: Unlocking Democracy in the Cells and on the Streets, a report detailing the impact felon disfranchisement laws have on communities of color nationwide. "Securing the right to vote for the disfranchised-persons who have lost their voting rights as a result of a felony conviction-is widely recognized as the next phase of the voting rights movement," said John Payton, LDF Director-Counsel.

Nationwide, more than 5.3 million Americans who have been convicted of a felony are denied access to the one fundamental right that is the foundation of all other rights. Nearly 2 million, or 38%, of the disfranchised are African Americans.

The report details that a staggering 13% of all African-American men in this country-and in some states up to one-third of the entire African-American male population-are denied the right to vote. Given current rates of incarceration, an astonishing one in three of the next generation of Black men will be disfranchised at some point during their lifetime.

Nowhere are the effects of felon disfranchisement more prominent than in the Black community, where more than 1.5 million Black males, or 13% of the adult Black population, are disfranchised-a rate seven times the national average.

The full report, which is relatively brief and intriguingly has as many pictures as pages, can be found at this link

April 21, 2010 in Collateral consequences, Who Sentences? | Permalink | Comments (0) | TrackBack

Should we care that Cameron Douglas, though sentenced to 5 years in prison, will likely be out in 2012?

I had a wonderful discussion with my sentencing class this morning about the realities of the Cameron Douglas sentencing and his forthcoming prison term.  We discussed the legal reality that, because parole was eliminated from the federal sentencing system via the Sentencing Reform Act of 1984, the 5-year prison term he was give yesterday (basics here) "really meant" he was subject to being incarcerated for half a decade.  But then we got into the practical realities of calculating his "real" time, and we discovered that he might be out of federal prison as early as 2012.  Here's why:

1.  Cameron Douglas was given credit yesterday for the 8 months he has already served pending sentencing, so his 60-month sentence already has only 52 months left.

2.  Cameron Douglas, like all federal prisoners, can earn up to 15% off his sentence for "good time."  Though the exact calculation of that time is now an issue pending before the Supreme Court in Barber v. Thomas (background here), it seems fair to assert that Douglas will be able to earn at least another 8 months off his sentence if he behaves himself.  Thus, his "real" federal prison term is potentially down to 44 months.

3.  Cameron Douglas, like many federal prisoners struggling with substance abuse, should be eligible for the RDAP program (background here), which could lead to a reduction of another year off his sentence.  Thus, his "real" federal prison term is potentially down to 32 months.

If my basic analysis and math is right (and I am not an expect on these back-end prison law issues), it seems that Cameron Douglas might be able to celebrate Hanukkah and Christmas 2012 at home with his famous father and step-mom.  In addition, because the RDAP program may also permit extended treatment and transition via half-way house placement and home confinement, Cameron Douglas might even get to watch the Summer 2012 Olympics from the comfort of his own home.

The big follow-up question to all real-world sentencing math is whether we should care or be at all bothered that Cameron Douglas, despite being sentenced to imprisonment for five years in federal court just yesterday, will likely walk out of federal prison in perhaps just over two years. 

Some related posts:

April 21, 2010 in Celebrity sentencings, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

SCOTUS to keep us waiting for juve LWOP rulings in Graham and Sullivan

As detailed in this post late last week, I thought there was a real chance that the Supreme Court might this week finally issue rulings in Graham and Sullivan, the two juve LWOP Eighth Amendment cases from Florida which were argued nearly six months ago.  But, as detailed here at How Appealing, the three rulings handed down today by the Justices were all concerning civil issues, and I believe it is unlikely we will get any more opinions issued until at least next week.

Though I am disappointed, I am not surprised that the Justices are taking their time with Graham and Sullivan.   As I have explained in prior posts, these cases have the potential to be the most consequential non-capital sentencing Eighth Amendment rulings in the Court's history.  Getting tese rulings done right is a lot more important than getting them done quickly.  In addition, I suspect that there will be multiple opinions in these cases no matter how they get resolved.  Indeed, the continuing delay reinforces my gut feeling that we may get four or five or even more separate opinions in these important Eighth Amendment cases.

April 21, 2010 in Graham and Sullivan Eighth Amendment cases, Who Sentences? | Permalink | Comments (2) | TrackBack

Research review showing home leave and work release can reduce recidivism

In light of on-going concern with recidivism rates and interest in effective re-entry programming, this paper newly available via SSRN should be on a reading list for everyone interested in evidence-based sentencing reforms.  The paper is titled "Reconsidering the Effectiveness of Temporary Release: A Systematic Review," and here is the abstract:

This article offers a systematic review of the ‘what works’ literature on temporary release, particularly as concerns home leave and work release programs. Against the ‘nothing works’ proposition, the findings suggest that both home leave and work release schemes can be effective in reducing recidivism rates, while work release may also enhance post-release employment prospects. The final section discusses the directions future evaluative research should take, with special reference to the need for drawing the link between the procedural and outcome dimensions of temporary release.

UPDATE:  I just noticed on SSRN this related (and slightly more recent) piece about temporary release from the same author, Leonidas K. Cheliotis, which is titled "Before the Next Storm: Some Evidence-Based Reminders About Temporary Release."

April 21, 2010 in Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (5) | TrackBack