June 2, 2010
Elderly sex offender gets long sentence for not checking ID before taking dirty picturesThis local story out of Michigan, which is headlined "Sex offender, 73, confused why his photos of nude teens caused such a legal fuss," reports on an interesting case involving an old pervert getting in big trouble for not figuring out how to refine his prurient interests. Here are the details:
Charles Judson Holbrook, sentenced twice for being a child sexual predator, says he doesn't understand why his photography of nude teens has caused such a fuss. Holbrook, 73 ... was sentenced to 15 to 40 years in prison Tuesday by Kent County Circuit Judge James Robert Redford for taking pictures of girls as young as 14 in exchange for money they used for drugs and shopping.
The incidents occurred between 2003 and 2009 involving three girls, all now older than 18, who lived in or had a friend living in Holbrook's neighborhood.... Three women told a jury Holbrook plied them with gifts and cash to pose nude or semi-nude for photos.
A 23-year-old woman said she was 16 or 17 when she began accepting money from Holbrook to have her picture taken in various states of undress -- including photos taken when she was pregnant at age 17. She said she used the cash she would get for the photo sessions to buy drugs and alcohol.
Two other women said they posed for Holbrook as teens. One of the girls was 14 at the time she was photographed. Another said she posed with other girls and would help recruit them to go to Holbrook's house, telling them they could make money.
The women said they would travel with Holbrook to area parks, and he would treat them to dinner, usually giving them money. Two of the women also said Holbrook offered them money to have sex, which they refused. None of the victims showed up for Tuesday's sentencing.
Holbrook's attorney, Freeman Haehnel, pointed out that the girls would show up to Holbrook's home uninvited and freely took money in exchange for posing. "I don't know who the predator is here," Haehnel said. "It seems both parties were using each other."
Holbrook appeared flummoxed by the whole series of events as the frail man looked around the room for family members. "I don't understand all this fuss over my picture-taking," Holbrook said. "All this over my picture-taking?" Holbrook said he has been fascinated by photography for more than 60 years.
In 2001, Holbrook pleaded guilty to charges he took nude photos of girls whom he met and befriended through his connections as a long-time sports fan and booster club volunteer in the Wyoming and Godfrey Lee school districts. Holbrook also pleaded guilty to a charge of having sex with a 15-year-old girl.
He was sentenced to one year in jail by then-Kent County Circuit Judge David Soet. In his earlier case, Holbrook was turned in by a photo developer.
The latest charges were a result of a victim coming forward, although the photos were developed at area drug and grocery stores where Holbrook would have his victims drop off the film and pick up the photographs. "If I thought there was a problem with my pictures, why, the corner drug store would not have touched them," Holbrook told Redford.
Redford called Holbrook's contentions "utter nonsense" and "completely fictitious." "This case is not about a 73-year-old man's fixation with cameras," said Redford. "This is about a predator taking sexually predatory advantage of vulnerable girls over a period of decades."
The best-case scenario for Holbrook would have him leaving prison at age 88. But Haehnel said considering Holbrook's health, the sentence handed down Tuesday is tantamount to a life sentence.
I believe that, had the girls photographed reached their 18th birthday when they started posing for cash, then Charles Judson Holbrook's behavior would have been not only legal, but constitutionally protected First Amendment activity. Thus, it seems that the real key to Holbrook's crime was his failure to ask for ID when teenage girls came to his door asking to be paid nude models.
In this context, it also bears noting that many states are prepared and eager to treat teens as adults when they commit crimes --- for example, this recent local story reports on Michigan charging a 14-year-old as an adult for a home invasion --- but they then readily assail someone like Charles Judson Holbrook for treating teens like adults in another context. Holbrook's surprise about his functional life sentence for taking nude pictures of teens perhaps makes sense given that Michigan asserts that teens can and should be treated like adults in other criminal justice settings.
I wonder what the folks at Liberty Central, who claim a commitment to "Founding Principles" of "limited government, individual liberty, free enterprise, ... and personal responsibility" would say about an old guy getting a functional life sentence for simply running his own small (teen porn production) business.
Charlie Sheen cuts a plea deal to cut down jail time for assaulting his wifeAs detailed in this hard-hitting E! Online report, which is headlined "Charlie Sheen Makes a Deal; Will Go to Jail," a famous actor is going to be spending a (small) part of his summer in the slammer. Here are the details:
Charlie Sheen is going from Two and a Half Men to two-and-a-half weeks…behind bars.
E! News has confirmed that the sitcom star will plead no contest to misdemeanor assault stemming from his Christmas Day arrest for attacking long estranged and newly over it wife Brooke Mueller.
Although Chief Deputy District Attorney Arnold Mordkin declined to comment on specifics, the plea would likely result in a 30-day jail sentence.
So where does the two-and-a-half weeks come in? Well, being the highest-paid sitcom star on TV does have its perks, and a cunning defense lawyer is apparently one of them.
Sheen is unlikely to make waves while in Aspen lockup and his good behavior will bring his sentence down significantly, meanwing he'd only serve about half the time. Sheen's attorney, Richard Cummins, has not returned calls seeking comment on Sheen's dealings.
The 44-year-old shaven wonder is planning to enter the plea at his hearing on Monday in Aspen on Monday. Before then, he'll need to finish up his court-ordered 36 hours of anger management classes.
Sheen originally faced two misdemeanor charges of criminal mischief and third-degree assault as well as felony menacing. The felony count, which carries a maximum three-year sentence, will now disappear.
New EJI report on racial discrimination in jury selectionAs detailed in this new New York Times article, which is headlined "Study Finds Blacks Blocked From Southern Juries," the folks at the Equal Justice Initiative have released a new report on racial discrimination in jury selection. This EJI release about the report gets started this way:
Nearly 135 years after Congress passed the Civil Rights Act of 1875 to eliminate racial discrimination in jury selection, people of color continue to be excluded from jury service because of their race, especially in serious criminal trials and death penalty cases. EJI today released a new report, “Illegal Racial Discrimination in Jury Selection: A Continuing Legacy,” which is the most comprehensive study of racial bias in jury selection since the United States Supreme Court tried to limit the practice in Batson v. Kentucky in 1986.
“The underrepresenation and exclusion of people of color from juries has seriously undermined the credibility and reliability of the criminal justice system, and there is an urgent need to end this practice,” said Bryan Stevenson, EJI's Executive Director. “While courts sometimes have attempted to remedy the problem of discriminatory jury selection, in too many cases today we continue to see indifference to racial bias."
During two years of research in eight southern states (Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, South Carolina, and Tennessee), EJI interviewed over 100 African-American citizens who were excluded from jury service based on race and reviewed hundreds of court documents and records. EJI uncovered shocking, present-day evidence of racial discrimination in jury selection....
The full EJI report is available at this link.
"Data Accuracy the Next Frontier in Criminal Justice"The title of this post is the headline of this intriguing piece from The Legal Intelligencer. Here is how the piece gets started:
The job of leaders in the criminal court system is to carry out justice, and accurate information is an essential part of fulfilling that responsibility.
At one time it was revolutionary just to use computer record-keeping systems instead of paper files in criminal justice. Now, the next information technology frontier is making sure the data collected by one criminal justice agency is accurate, comprehensive, and can be used by other criminal justice agencies in formulating public policy.
Although a lot of resources have been invested in the hardware used by Pennsylvania criminal justice agencies, "we always come back to the same discussion," said Rita D. Reynolds, director of technology services and telecommunications for the County Commissioners Association of Pennsylvania (CCAP). "The data needs to be quality, it needs to be consistent ... for policy, also for safety and for notification" of victims.
June 1, 2010
Why doesn't the new Liberty Central website say anything about mass incarceration or the drug war or any criminal justice issues?
Thanks to this new post at The BLT, which is headlined "Virginia Thomas Celebrates 'Fantastic' Web Launch for Conservative Site," I checked out Liberty Central a new website formally launched last week with the express "primary objective" to seek "to harness the power of citizen voices, inform everyday Americans with knowledge, and activate them to preserve liberty." Because I view my own work on this blog in similar terms, I was hopeful that I would find liberty-inspired information and discussion about criminal justice issues, and especially the massive costs and consequences of government restrictions on liberty resulting from the drug war and modern US mass incarceration.
Troublesomely, I could not find any information of any kind about the drug war or mass incarceration anywhere on the otherwise impressive Liberty Central website. Indeed, among the Liberty Central's a long list of "hot issues" on this page, there is not a single entry on any traditional criminal justice topic. Given especially that the bulk of the Bill of Rights (and much of the body of the Constitution) is focused on limiting the criminal justice powers of the federal government, I find it especially disappointing to see no mention of criminal justice issue or concerns anywhere at Liberty Central amidst all the references to the Constitution and the principles of the Framers.
Interestingly, this "Founding Principles" webpage states that "[f]rom its earliest stages, Liberty Central identified limited government, individual liberty, free enterprise, national security, and personal responsibility as the five principles that best capture the foundations we, as a nation, need to preserve." I am a firm believer in all of these important principles, and they greatly inform my own deep concern with the huge growth of government and restrictions on individual liberty that result from modern US criminal justice policies, especially with respect to the war on drugs and mass incarceration. (Relatedly, I also see many aspects of the drug war and mass incarceration undermining free enterprise, national security, and personal responsibility, though the complete story of my views here are more complicated.)
Usefully, the Liberty Central site has this page which allows for feedback and makes a pledge: "We want to hear from you! So please let us know if you have suggestions, comments or questions. As America’s Public Square, we believe in citizen voices and look forward to hearing from you." So, I encourage all of the readers of this blog to head over to Liberty Central and urge the folks there to discuss how our modern criminal justice system impacts the principles of limited government, individual liberty, free enterprise, national security, and personal responsibility. If lots of folks go over an express interest in criminal justice discussion, I am hopeful the Liberty Central folks will fill this conspicuous gap in its coverage.
New district court sentencing data now available from the USSC
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:
Second 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 through the second quarter of fiscal year 2010. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published June 1, 2010)
The new data continue to show remarkable stability in trends in the application of the advisory federal guideline sentencing system: these data show, yet again, prosecutors and judges moving just a little further away from the guidelines, with now 55% of all federal sentences are within the calculated guidelines range, with prosecutors requesting a below-range sentence in more than 26% of all cases. (Figures A and B and Table 4 show these long-term trends most clearly.)
Not long after the 2008 election, I speculated here that ground-level sentencing trends might show the imprint of a new administration before there were any formal legal and policy developments. Interestingly, these latest numbers continue to suggest that the new Obama judges and new Obama US Attorneys may be, very slowly but very surely, continuing to help the federal sentencing system drift away from the anchors established in the federal guidelines.
Some intriguing who and how dynamics in the Carr ruling reversing sex offender's SORNA conviction
The substance of the Supreme Court's opinion this morning in Carr (basics here), which reverses a sex offender's failure-to-register federal conviction, is mind-numbing even for hard-core sentencing fans. The decision is focused only on statutory interpretation: he majority declares that the criminal statute, 18 USC § 2250, does not apply to sex offenders whose interstate travel occurred before the effective date of the Sex OffenderRegistration and Notification Act (SORNA); the dissent contends that SORNA's statutory text should be read to reach preenactment as well as postenactment travel by sex offenders. Along the way, we learn about congressional legislative drafting manuals, and the dissent even provides a remarkable sting cite to nine state legislative drafting manuals (with parentheticals). Woo hoo!
Despite the drab substance of the Carr opinions, the authors, votes and approaches in the Court's work here merits comment and reflection:
First,it is interesting and notable that the two former prosecutors on SCOTUS, Justices Sotomayor and Alito, wrote the majority and dissenting opinions. It is likewise interesting and notable that the two female Justices also split in this case. I cannot help but suspect that the sex offender context may have prompted Justice Ginsburg to be less sympathetic than usual to the appealing defendant here.
Second,it is interesting and notable that the majority opinion by Justice Sotomayor relied a bit on legislative history, but did not mention statutory construction canons like the rule of lenity and constitutional doubt, to reach a pro-defendant statutory ruling. This strike me as backward because I think Congress likely wanted SORNA to have a very broad reach, yet I also think pro-defendant statutory construction canons should be the chief way to force Congress to be very clear with its statutory text when it wants a criminal statute to have a very broad reach.
Third,it is interesting and notable that Chief Justice Roberts did not join Justice Scalia's brief concurrence complaining about the majority's reliance on legislative history, and also that Justice Alito's dissent also played up legislative history to some degree. It seem that Justice Scalia's antipathy for reliance on legislative history is not gaining any new converts among the new Justices.
Fourth, both the majority and dissent note lots of circuit splits and lots of potential constitutional concerns with aspects of SORNA that are not directly addressed in the Carropinion. I think this means we can and should expect a docket filled with at least a SORNA case or two in many future SCOTUS Terms.
"Classic" split 5-4 SCOTUS ruling in reversal of Sixth Circuit habeas grant
In a ruling that covers Miranda and IAC issues, the Supreme Court this morning has reversed the Sixth Circuit yet again in is Berghuis v. Thompkins, No. 08-1470 (S. Ct. June 1, 2010) (available here). The ruling is a "classic" 5-4 split with the majority opinion written by Justice Kennedy, and with Justice Sotomayor filing the chief dissent joined by Justices Stevens, Ginsburg, and Breyer. The discussion of ineffective assistance of counsel issues, as well as application of AEDPA review of a state conviction, makes this Thompkins ruling significant even for those not focused on the main Miranda issue that divides the (so-called) conservatives and liberals in this ruling.
As my post title hints, the vote break-down in this Thompkins ruling (as well as the much different vote break-down in today's Carr opinion noted here) confirms my impression that the "classic" 5-4 split votes in SCOTUS criminal justice cases emerges principally when the Court is reviewing habeas decisions reviewing state convictions. But in most other criminal cases lately, such a 5-4 split seems rare. (I think I will ask a research assistant to double-check this impression with data after the end of the current SCOTUS Term.)
Sex offender prevails with challenge to SORNA conviction in CarrSCOTUSblog already has news on the first Supreme Court opinion handed down this morning, and it is a win for a sex offender appealing his SORNA conviction in Carr. Here is the early SCOTUSblog report:
We have the first opinion: 08-1301, Carr v. United States.... The opinion is by Justice Sotomayor, reversing and remanding....
The vote is 6-3, with Justice Scalia joining most of the Sotomayor opinion but filing a concurrence in part and in the judgment. Justice Alito dissents, joined by Justices Thomas and Ginsburg.... The Court rules that a 2007 law (SORNA) that requires sex offenders to register does not apply to sex offenders whose interstate travel occurred before the Act went into effect.
This interesting case appears to have produced an interesting vote line-up (and includes yet another pro-defendant vote from the Chief Justice). The full Carr opinion is available here, and I will likely comment in more detail in a later post once I have a chance to review the Justices' work in detail.
As the calender turns to June, my thoughts turn to SCOTUS, baseball and golfI was pleased to see an interesting bit of judging data in this new "Sidebar" pieceby Adam Liptak in today's New York Times. The piece is headlined "This Bench Belongs in a Dugout," and it is mostly about baseball fandom on the Supreme Court. But one of my other passions also got mention thanks to important research in the The Baseball Research Journal:
“Nothing in the law of sport matches the frequency of baseball’s interaction with the institutions of the law or the tendency of lawmakers who speak of sports to talk in baseball terms,” Ross E. Davies, a law professor at George Mason University, wrote in an essay in The Baseball Research Journal last year.
He provided data. There have been more references to baseball in federal and state judicial opinions over the last century or so than to any other sport, though golf is a surprisingly close second.
With the calender turning to June, and the wonderful Memorial Tournamentstarting in my backyard, and my fantasy baseball team showing a little life, and with the Justices dues to issue a bunch of big opinions starting today and through the whole month, and SG Kagan's confirmation hearing to start at the end of the month, it is a great time to be a SCOTUS and sports nerd. And I am so pleased to learn thanks to this new "Sidebar" piece that I can reasonably hope for baseball and golf references as I plow through new Supreme Court rulings.
New NAACP report on "prison-based gerrymandering"As detailed in this press release, this morning "the NAACP Legal Defense and Educational Fund (LDF) released Captive Constituents, a report on prison-based gerrymandering." Here is more from the press release:
As the report details, most states and local governments count incarcerated persons as residents of the prison communities where they are housed when drawing election district lines, even though they are not residents of those communities and have no opportunity to build meaningful ties there.
“This practice is known as ‘prison-based gerrymandering,’ and it distorts our democratic process by artificially inflating the population count—and thus, the political influence—of the districts where prisons and jails are located,” said John Payton, LDF Director-Counsel. “Everyone should care about this anti-democratic phenomenon because it distorts our political system.”
The United States Constitution requires that election districts must be roughly equal in size, so that everyone is represented equally in the political process. This requirement, known as the “one person, one vote” principle, is undermined by prison-based gerrymandering.
Prison-based gerrymandering results in stark racial disparities as well. African Americans are nearly 13% of the general population, but are 41.3% of the federal and state prison population. But incarcerated persons are often held in areas that are far removed, both geographically and demographically, from their home communities. Thus, prison-based gerrymandering not only weakens the political strength of communities of color, it is also eerily reminiscent of the infamous “three-fifths compromise,” which enabled Southern states to amplify their political power by counting enslaved and disfranchised African Americans as amongst their constituents.
“Because incarcerated persons in the United States are disproportionately African Americans and other people of color, the current counting of prisoners at their place of incarceration severely weakens the voting strength of entire communities of color,” said Payton.
The full (and brief and colorful) NAACP report is available at this link.
May 31, 2010
"Federal Sentencing at a Crossroads: A Call for Leadership"The title of this post is the title of the terrific panel discussion put together last week by NYU's Center on the Administration of Criminal Law and the Federal Bar Council. The discussion was moderated by The Honorable John Gleeson, United States District Judge, United States District Court for the Eastern District of New York, and included as panelists:
- Professor Rachel E. Barkow
- Representative John Conyers, Jr.
- Anthony Ricco, Esq.
- Chief Judge and USSC Chair William K. Sessions
- Alan Vinegrad, Esq.
- Jonathan Wroblewski, DOJ's ex-officio member on the USSC
The NYU Center has made the video of the event available via this link, and it describes the proceedings this way:
This program brought together leaders in sentencing policy to discuss various questions, including: Who is -- and who should be -- in charge of federal sentencing policy? What changes are desirable, and how can change best be accomplished? Why is change in favor of defendants so elusive, even in narrow contexts where prosecutors agree it is necessary? Should sentencing policy at the federal level be linked to its fiscal consequences, as it is in the states? The program explored these and other questions in part through the window provided by recent developments related to nonviolent drug offenders, including pending legislation to reduce the disparity between federal sentences for crack cocaine and powder cocaine offenses.
What would those who gave all think about US mass incarceration?Here is a deep question to ponder on Memorial Day: what would the men and women who gave their lives fighting for American freedom think about the modern reality that the US now has the largest prison population in the world?
May 30, 2010
"How can Georgia turn lawbreakers into taxpayers?"
The title of this post is the headline of this interesting new piece from the Atlanta Journal-Constitution, which is a companion to this broader article on the budget burdens of incarceration levels in Georgia. The main piece starts this way:
As states across the nation recognize that prison costs are busting tight budgets and doing little to reform offenders, many governors and legislators are thinking outside the cell.
Mississippi lawmakers decided in 2008 to cut prison costs by allowing all nonviolent offenders to be considered for parole after serving 25 percent of a sentence instead of 85 percent. In Texas, a bipartisan effort in 2007 avoided $2 billion in costs to build and operate new prisons by spending $241 million on alternatives: stepped-up probation and parole programs, new halfway houses and specialty courts devoted to offenders with drug issues and mental health problems.
North Carolina announced in April a bipartisan initiative to develop a new research-driven approach to public safety that is expected to reduce prison costs by investing in alternatives that are more effective. South Carolina’s Legislature last week approved a landmark sentencing reform package designed to save the state $400 million over the next five years by reducing incarceration of nonviolent offenders and more closely supervising released inmates to reduce recidivism....
So far, the [Georgia] General Assembly has not debated its prison-focused approach in the way other states have. But the discussion may be inevitable as a prison budget that consumes more than $1 billion a year threatens to force further cuts in education and other high-priority programs....
A special report in last Sunday’s editions of The Atlanta Journal-Constitution revealed that Georgia has the nation’s fourth-highest incarceration rate. The state ranks first nationally in overall criminal punishment, with 1 in 13 Georgians either behind bars, on probation or on parole, according to a study published by the Pew Center on the States.
State spending on corrections has increased fivefold since 1985 due mainly to longer stays in prison, the AJC investigation found. Georgia already spends less than most states to house a convict: $49 a day compared with a national average of about $79, according to the Pew report.
Georgia’s total state budget of $17.9 billion is $3 billion lower than it was just three years ago. Corrections did its part — officials cut prison staff, closed outdated facilities and triple-bunked some cells. But making further cuts will be difficult if the inmate population stays the same or continues to rise.
Lawmakers will likely face a difficult choice in the 2011 session: Opt for more teacher layoffs, higher college tuition bills and less money for transportation, or make changes to lower Georgia’s prison population.
The companion piece gets started this way:
Many states are considering alternatives to incarceration. Some find they can save money and improve public safety by sentencing nonviolent offenders to programs that will change their behavior. The AJC studied options that could help Georgia reduce its need for prison beds.
The piece goes on to note these Georgia programming cost comparisons (among others):
- $49: Cost per day of incarceration
- $14.40: Cost per day of drug court program (Fulton)
- $4.43: Cost per day of parole supervision
- $16.40: Cost per day of day reporting program