June 12, 2010
Scheduled firing squad execution renewing Utah's death penalty debateBarring some unexpected development, Ronnie Lee Gardner will be executed in Utah this coming Friday in the same manner in which the first modern US execution took place 33 years ago. This new Salt Lake Tribune article discusses this symetry and the persistent debate over capital punishment in the interim. Here are extended snippets:
Gary Gilmore earned Utah a special place in history when his 1977 execution by firing squad reopened the door to capital punishment in the United States. The practice has remained problematic ever since.
Otherwise, Ronnie Lee Gardner -- sentenced to die for the 1985 courthouse slaying of attorney Michael Burdell -- wouldn't have spent 25 years on Utah's death row awaiting his fate....
Now, as the nation again turns an eye toward Utah and its preparations for Gardner's Friday execution by firing squad, capital punishment proponents insist death is the only just penalty for the worst crimes. But for opponents, questions persist: Is the death penalty administered arbitrarily? Is justice served when inmates languish for decades on death row? Can states afford to spend the millions of dollars capital cases require? And does the death penalty deter crime and lead to a better society?...
"The law is not very good at specifying who should live and who should die," argues Franklin E. Zimring, a law professor at University of California at Berkeley. Zimring was among those who recently convinced the American Law Institute -- an association of about 4,000 lawyers, professors and judges -- to abandon its support of the death penalty based on arbitrary application....
In some cases, such as that of the mother and stepfather charged in the recent torture killing of 4-year-old Ethan Stacy, society demands execution, said Kent Scheidegger, director of Sacramento-based Criminal Justice Legal Fund.
"There are some crimes for which any lesser penalty is not justice," Scheidegger said. Although he contends there is no way to make capital punishment "completely consistent," Scheidegger said the system does "by and large only sentence the worst killers to death."
For capital punishment to be effective as a deterrent, Scheidegger said, states must streamline the appeals process. He pointed to Virginia, which limits the number of appeals in capital cases to an automatic appeal followed by a second review. An execution date is set immediately after the second review is denied, forcing inmates to turn the federal courts, according to the Office of the Virginia Attorney General.
Behind Texas, Virginia has executed more people since capital punishment was reinstated than any other state. It took seven years to execute the state's so-called "D.C. Sniper," John Allen Muhammad, believed to have killed up to 10 people in the 2002 Beltway shootings. Virginia's five-year average from sentencing to execution compares with a national average of 11 years, according to Northern Illinois University....
Like most death penalty proponents, Paul Cassell, a University of Utah law professor, would like the time between conviction and execution to be reduced. But otherwise, he contended, the death penalty works well in this country and is structured to be lenient, rather than barbaric. "We could make the death penalty apply evenly, but if it's applied evenly, everyone who commits murder gets the death penalty," he said. "The sorting is done by the jury."
Salt Lake City defense attorney Ken Brown, a death penalty opponent, argued capital punishment doesn't lead to a better society. Beyond that, Brown said it isn't fair to the victim's families, either -- particularly in an era where an execution, such as Gardner's, can be 20 years or more in coming. Prosecutors should tell the victim's families, 'Every time we deal with this case that wound will be reopened,' " he said. "Calmer minds need to be saying, 'Nothing we do can bring your [loved one] back. We can kill someone else, but at what cost?' "
That is borne out by the families of Gardner's victims, who say they relived the horrors of their loved-one's deaths every time Gardner has made headlines over the past quarter century. Gardner was appearing in court for slaying Melvyn Otterstrom when he fatally shot attorney Michael Burdell and wounded court bailiff Nick Kirk during an escape attempt.
But like the rest of the country, the families of Gardner's victims have mixed views on the death penalty. Kirk's widow and daughters say they can't rest until Gardner has been executed. Donna Nu, Burdell's fiance, says she would do anything to stop Gardner's execution.
Otterstrom's widow, Kathy Potter, and son, Jason Otterstrom, have not weighed in on Gardner's death sentence, although his son said Thursday he wants a final resolution in the case. "I don't know which path should be followed. But our family needs peace," he said. "I ask that whatever decision is reached, that it be permanent."
"Clarence Thomas in 2012!"The title of this post is the last line of this amusing Washington Post op-ed by Kashmir Hill and David Lat of Above the Law, which makes a lovely case for Justice Clarence Thomas running for President in 2012. The piece is titled, "Justice Clarence Thomas seems bored. Why doesn't he run for president in 2012?", and here are a few snippets:
The Republican Party is in disarray, with no clear message -- as shown in last week's primaries -- and with no obvious candidate to challenge President Obama in 2012. Thomas could be the GOP's new standard-bearer. He has enviable name recognition, both as a long-serving justice and as the author of the bestselling 2007 autobiography "My Grandfather's Son." And he has already survived the nasty political attacks that marked his 1991 confirmation hearings.
A Thomas candidacy would bring racial diversity and a moving personal story to the Republican ticket. Thomas was born into poverty in Pin Point, Ga. He didn't have indoor plumbing until he moved to Savannah to live with his grandparents at age 7....
Thomas is well suited for political office. On the nation's highest court, he has had to reflect and rule on the country's most divisive issues. He also has political experience predating the court. He worked as an assistant attorney general in Missouri and then for the Reagan administration in the Department of Education and as head of the EEOC....
Would it be insane for Thomas to leave a lifetime appointment to run for president? Well, he is a judge, so let's talk precedent. If elected, Thomas would not be the first person to serve as both president and justice: William Howard Taft was president from 1909 to 1913, then chief justice from 1921 to 1930. And Thomas wouldn't even be the first to attempt this in the reverse order: Charles Evans Hughes, appointed to the court in 1910, resigned in 1916 to run as the Republican nominee for president. He lost to Woodrow Wilson by a mere 23 electoral votes.
Of course, some sentencing fans will have kind spot in their heart for Justice Thomas because of his approach to the Sixth Amendment in Apprendi and Harris and Blakely. But I doubt his approach to jury rights would be a central aspect of any election campaign. Though this op-ed (and my comment, too) was obviously written with tongue firmly planted in cheek, it is truly intriguing to think about a modern Justice considering a run at the Presidency. And it is especially fun to imagine celebrating the sesquicentennial of the Emancipation Proclamation with a choice between two black men for US President.
Special JRP issue on "Sentencing and Corrections in the States"I am pleased to be able to report on and promote a the Special Issue on Sentencing and Corrections in the States that was just published by the Justice Research and Policy and it available via this link. Here is how this issue is summarized by the folks at JRP:
This special issue of JRP contains seven articles by leading researchers that examine sentencing and incarceration practices across the United States, with a focus on state issues and practices:
- A National Overview offer strategies for reducing the correctional population across the country as a whole.
- State Focus articles provide in-depth looks at corrections policies and practices in Florida, Pennsylvania, New York, Texas, and California.
- A final Commentary discusses the issues highlighted by these articles and offers insights into present and future U.S. sentencing and corrections practices.
Based on my own quick skim, it appears that every one of the seven articles in this special issue is a must read.
New release of Kagan papers includes a crack/powder memoThis new AP article discussing the "roughly 40,000-page trove of documents released by the William J. Clinton Presidential Library on Friday" includes this sentencing-related tid-bit:
In a July 1997 memo to Clinton on drug sentencing guidelines, Kagan and [her boss Bruce] Reed counseled a middle-ground policy to sharply reduce — but not eliminate — the disparity between crack and powder cocaine sentences. They said Clinton could expect criticism both from Republicans, who would call the position soft on drug users, and the Congressional Black Caucus, which would accuse the administration of "failing to go far enough to remove a racial injustice."
I do not think kind of memo should be viewed as providing a window into SG Kagan's sentencing soul, though it does show she has understood the basic politics of the long-standing debate over crack sentencing.
June 11, 2010
How can and should we assess the "success" of medical marijuana and pot prohibition reform efforts?
Frequent blog commentor Bill Otis has a notable and curious post here at Crime & Consequences that references this new AP article in which "Montana Gov. Brian Schweitzer says legalization of medical marijuana has not worked out as voters planned, and agrees the state needs a legislative fix." This AP piece goes on to explain that Montana's "medical marijuana law has become one of the hottest topics facing lawmakers as the state deals with an explosion in the number of patients, caregivers and growers." According to Bill, this story demonstrates "[o]ne of the myths of pot legalization (first for so-called medical purposes, then for any purpose) ... that life gets better after it's done."
I was intrigued and troubled by Bill's quick conclusion that the AP report suggested that life was now worse in Montana because of the state's medical marijuana reforms. Especially if one sees pot use as comparable to alcohol use, an "explosion" of the number of persons legally using pot (and thereby creating a legitimate and taxable industry instead of a problematic black market) seems like evidence that life is getting better. Indeed, digging around a bit, I found some other media discussions of Montana's marijuana issues (see local editorial and pieces from NPR and Drug War Chronicle), and it seems that the big problem in Montana is not legalization, but very poor regulation under existing law.
Indeed, I spent some time checking out out the website of a Montana group called Safe Communities, Safe Kids that is seeking to repeal the state's medical marijuana law, and I had a very hard time finding any evidence that life is worse in Montana because of the state's medical marijuana reforms (unless one believes that having any "patients, caregivers and growers" of marijuana necessarily makes the state worse off). A key theme of the anti-pot forces seems to be that legalization allows kids to have a chance to access pot. But, again, if one sees pot use as comparable to alcohol use, I have a hard time seeing the big deal. All kids in Montana and elsewhere have a ample opportunity to access alcohol (and tobacco and guns and knives and rat poison lots of other dangerous legal stuff), but we generally seek to deal with these concern of access through sensible regulations, not through categorical prohibitions.
The deeper issue that goes beyond the debate in Montana, as suggested by the title of this post, is just how we can and should assess the "success" of medical marijuana and related pot reform and decrminalization efforts. If most people continue to consider the "wicked weed" truly wicked, then there will be persistent claims that pot reform has made life worse because more people will have legal and ready access to pot. But unless and until these same people can effectively assert and establish that the life has been worse in America since we repealed alcohol Prohibition, I think it is important to be a bit more thoughtful and critical when seeking to assess and/or criticize the consequences of on-going marijuana reform efforts.
Some related posts:
- Should and will California's voters legalize marijuana in that state this November?
- Green tea party: will Glenn Beck or Sarah Palin or other professed liberty lovers support ending pot prohibition in California?
- "Sarah Palin, Marijuana Law Reformer?"
- Thoughtful academic thoughts on ending marijuana prohibitions
- "Legalizing marijuana not really a dopey idea"
- Did Sarah Palin or any others at the Tea Party Convention talk about pot prohibition or mass incarceration?
Split Sixth Circuit ruling spotlights split over who can get resentenced under new crack guidelines
Within the next few weeks, the Supreme Court will hand down a ruling in the Dillon case dealing with the extent of a district court's authority to reduce sentences when a defendant is eligible for a reduction under the Sentencing Commission new reduced crack guideline. But the Dillon case is unlikley to resolve or even address questions concerning just who is eligible for a reduction in the first instance, and this eligibility issue has lead to some circuit splits in a variety of contexts
An intriguing new split opinion today from the Sixth Circuit in US v. Pembrook, No. 08-6452 (6th Cir. Jun. 11, 2010) (available here), spotlights some aspects of this debate over this eligibility issue. Here is how the majority opinion in Pembrook starts:
In 1997, Daryl Marcus Pembrook pleaded guilty to possession with intent to distribute crack cocaine. Under U.S.S.G. § 4B1.1, Pembrook was a career offender. At sentencing, Pembrook prevailed upon the district court to depart downward from his career-offender guideline range to a sentence stated with reference to the analogous range for his crack-cocaine offenses. A decade later, Pembrook filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), arguing that Amendment 706 to the crack-cocaine guidelines had lowered his applicable guideline range. The district court denied his motion, on the grounds that Pembrook’s applicable guideline range was his career-offender range–not his crack-cocaine range–and Amendment 706 did not affect that range. Pembrook now appeals. Because we conclude that Pembrook’s applicable guideline range was his career-offender range, and Amendment 706 did not have the effect of lowering that range, we affirm.
Here is how the dissent in Pembrook starts:
The Sentencing Guidelines should be interpreted, if the words can fairly be so read, to permit resentencing when a properly applied Guideline that affected the length of a sentence is later retroactively reduced. When two Guideline calculations were properly used at two different steps of the sentencing determination process to determine a defendant’s original sentence, no policy supports permitting resentencing only if the first, but not if the second, calculation would have been different under a retroactive amendment. It is hard to imagine why the Sentencing Commission would adopt such a policy. The syntax of the operative policy statement language does not require such a limit; indeed, it cuts the other way. Under the policy statement, there must have been a lowering of “the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). The words most naturally mean “a guideline range [properly] applied to the defendant.” The words do not require that there be only one such range. By analogy, if a sport rule provides for a penalty if “the player’s foot steps out of bounds,” English syntax does not require that the rule apply only to the right foot or the left foot. The clear meaning of “the player’s foot” is “a foot of the player.” In short, because the Sentencing Commission retroactively lowered the Guideline range that the district court properly applied to Pembrook so as to affect his sentence, the requirements of the statute and the operative policy statement were fulfilled, and the district court had the authority to resentence Pembrook.
I have not given much attention to these issues as we await a ruling from the Supreme Court in Dillon. But it will be interesting to see if SCOTUS will take up
Worth reading around the blogosphere
Also worth checking out are these notable sentencing posts from some other old-favorite blog settings:
- From Pardon Power, "More Mercy in Iran than in Obama Administration!"
- From Prawfsblawg, "Time delayed sentencing gets off the ground!"
- From The Volokh Conspiracy, "Recent Michigan Prosecutions for 'Seducing an Unmarried Woman'”
"Sentencing and Comparative Theory"The title of this post is the title of this notable new piece of scholarship from Professor Richard Frase available via SSRN. Here is the abstract:
Mirjan Damaska and other comparative criminal justice theorists have given very little attention to how comparative law models and theories might apply to sentencing. Although numerous scholars have studied the differences in sentencing alternatives and overall punishment severity across national boundaries, almost none have linked these differences to the models and theories used to describe, explain, and predict changes in criminal pretrial and guilt-determination procedures.
In the United States there have been significant recent changes in sentencing goals and procedures, in particular: 1) retributive and public safety goals have been given increased emphasis, while rehabilitation has been de-emphasized; 2) many U.S. jurisdictions now use some form of sentencing guidelines; 3) almost all jurisdictions apply mandatory or mandatory-minimum sentences to certain offenders; 4) the U.S. Supreme Court has held that certain facts permitting sentence-enhancement may no longer be informally determined by the trial judge at the sentencing hearing, but must be submitted to the jury and proven beyond a reasonable doubt; and 5) overall sentencing severity (as measured, for example, by prison populations relative to resident population and relative to criminal caseloads) has risen substantially in almost all U.S. jurisdictions. Do comparative law models help to explain any of these changes? This essay considers whether Damaska’s theories, some variation on his theories, or alternative comparative law theories might help to explain cross-national variations (as well as within-nation variations, across states and other jurisdictions) in sentencing goals, procedures, alternatives, and outcomes.
June 10, 2010
California regulators reject state's revised lethal injection planAs detailed in this new AP piece, which is headlined "Regulators reject new death penalty procedures," California's long-stalled efforts to get back in the business of executions has hit another snag. Here are the basics:
California regulators have rejected proposed new death penalty procedures, further delaying the resumption of executions stalled by court order since 2006.
The Office of Administrative Law on Tuesday rejected the proposed regulations drafted by prison officials, who have until Oct. 6 to submit revisions. The court cases challenging California's capital punishment law will remain on hold until the proposed regulations are approved.
The office identified several passages that conflicted with state law, were unclear or failed to properly state reasons for the new procedures....
The duty of the Office of Administrative Law is to ensure that state agencies follow proper procedures in drafting proposed regulations. Its approval of the lethal injections protocol was seen as a mere formality. But on Tuesday, the obscure state agency sent prison officials a blistering 21-page "decision of disapproval of regulatory action."...
The American Civil Liberties Union, which is challenging California's death penalty in federal court, called on Schwarzenegger to abolish the death sentence. "We believe the flaws are too fundamental and at some point we have to stop," said the ACLU's Natasha Minsker. "This really demonstrates that the CDCR has not really taken the process seriously."
An (amusing and telling) attack on Elena Kagan's potential to be "activist judge" who "will undermine Americans' gun rights"
One reason I have been a fan of the Supreme Court's Second Amendment work in Heller is because the ruling should help bring an end to simplistic (and, in my view, misguided) attacks on "activist judges" from the right. Because it was the so-called conservative wing of the Supreme Court that cast all the votes to strike down DC's handgun ban as unconstitutional, Heller seemed to make it impossible for those on the right to hurl the "activist" invective against any and every jurist who ever declared unconstitutional a duly-enacted piece of legislation.
Of course, I was wrong to assume that Heller itself would serve as an epitaph for the use of "judicial activist" as a vituperative accusation. And, as evidenced by these sections of this amusing Washington Times editorial attacking Elena Kagan's approach to the Second Amendment, it seems that the activist label can still be hurled at someone inclined to uphold gun regulations:
[Ms. Kagan's] memos to Justice Marshall foreshadow an activist judge who wouldn't hesitate to fall back on her own personal views to override policy decisions made by elected officials. She clearly counseled Justice Marshall on how he should rule based upon whether she thought policies made "sense."...
Ms. Kagan is Justice Sonia Sotomayor's soul sister when it comes to gun control. Last year, during her confirmation hearings, Ms. Sotomayor insisted the Supreme Court had never found that an individual right to self-defense exists. Two of Justice Sotomayor's own appeals court decisions came to the same conclusion. One ruling denied there is an individual right to self-defense. In another case, even after the Supreme Court struck down the District's gun ban, Judge Sotomayor opined that any restrictions on self-defense would pass constitutional muster so long as politicians who passed it said they had a good reason.
According to the Washington Times, Kagan is to be faulted as a potential "activist" judge because she apparently would "fall back on her own personal views to override policy decisions made by elected officials." And yet Justice Sonia Sotomayor, Kagan's "soul sister" is to be faulted for not being willing to override duly enacted laws just because "politicians who passed it said they had a good reason." Huh?
Indiana Supreme Court addresses use of risk assessment tools in state sentencingThe Indiana Supreme Court yesterday handed down an interesting and important decision concerning the use at sentencing of the kind of risk-assessment tools that are become increasingly more popular in those states adopting evidence-based sentencing practices. Here is how the Court's unanimous ruling in Malenchik v. Indiana, No. 79S02-0908-CR-365 (Ind. June 9, 2010) (available here), gets started:
Following his plea of guilty to Receiving Stolen Property, a class D felony, and his admission to being a Habitual Offender, the defendant was sentenced to a total of six years, with two years suspended. The defendant appeals his sentence and presents two claims: (1) the trial court erroneously considered as an aggravating circumstance the numerical scores reported by the Tippecanoe County Probation Department after it conducted evaluations of the defendant using certain offender risk evaluation and assessment instruments; and (2) his sentence was inappropriate and should be revised. The Court of Appeals rejected both claims and affirmed in a memorandum decision. Malenchik v. State, No. 79A02-0902-CR-133 (Ind. Ct. App. June 5, 2009). We granted transfer to address the first claim and invited supplemental briefs of the parties and amici curiae. As explained below, we hold that legitimate offender assessment instruments do not replace but may inform a trial court's sentencing determinations and that, because the trial court's consideration of the defendant's assessment model scores was only supplemental to other sentencing evidence that independently supported the sentence imposed, we affirm the sentence.
New CEPR report on "The High Budgetary Cost of Incarceration"I am intrigued and pleased to learn that the Center for Economic and Policy Research (CEPR) has released here a new report titled "The High Budgetary Cost of Incarceration." The full report is available at this link, and here is how CEPR describes its findings:
The United States currently incarcerates a higher share of its population than any other country in the world. We calculate that a reduction in incarceration rates just to the level we had in 1993 (which was already high by historical standards) would lower correctional expenditures by $16.9 billion per year, with the large majority of these savings accruing to financially squeezed state and local governments. As a group, state governments could save $7.6 billion, while local governments could save $7.2 billion.
These cost savings could be realized through a reduction by one-half in the incarceration rate of exclusively non-violent offenders, who now make up over 60 percent of the prison and jail population. A review of the extensive research on incarceration and crime suggests that these savings could be achieved without any appreciable deterioration in public safety.
This CEPR press release adds these comments and details about the report:
"State and local governments are under tremendous fiscal pressure,” said John Schmitt, a senior economist at CEPR and lead author of the report. “Shifting just half of the non-violent offenders from prison and jail to probation and parole could save state and local governments $15 billion per year."
The study points out that some of the main causes of the rise in incarceration rates are policies such as "mandatory minimums" and "three strikes" laws that often lead to long prison terms for non-violent offenders. Earlier research on the connection between crime and incarceration suggests that state and local governments could shift non-violent offenders from jail and prison to probation and parole with little or no deterioration in public safety.
Among the key findings are:
- In 2008, one of every 48 working-age men were in prison or jail
- Non-violent offenders make up over 60 percent of the prison and jail population; non-violent drug offenders account for one-fourth of all offenders behind bars
- The total number of violent crimes in the United States was only about three percent higher in 2008 than it was in 1980. Over the same period, the U.S. population increased by 33 percent while the prison and jail population skyrocketed by more than 350 percent.
Disgraced Detroit mayor apparently boot camp eligible despite getting significant state prison sentenceThis new Detroit Free Press article, which is headlined "State: Ex-mayor Kilpatrick qualifies for boot camp," provides an interesting update on a high-profile state sentencing case out of Michigan. Here is how the piece starts:
Two weeks after he was handcuffed in a Wayne County courtroom on live television and hustled off to prison, Kwame Kilpatrick is being proposed for boot camp with the prospect of parole in 90 days.
The Michigan Department of Corrections made the proposal in a Tuesday letter to Wayne County Circuit Judge David Groner, who sentenced the former Detroit mayor to 1 1/2 to five years in prison for probation violation.
Inmates who successfully complete the 90-day boot camp program are placed on parole for a minimum of 18 months, with the first 30 days under intense supervision. By law, Groner has veto power over the proposal. So the ultimate decision rests, again, with him.
Wayne County Prosecutor Kym Worthy said she learned of the proposal Wednesday. "We will certainly recommend to the judge that this not occur," Worthy said. The two weeks Kilpatrick has been imprisoned is not enough time to screen him for such placement, she said. Her other objections will be in her letter to Groner, she said.
Kilpatrick's former lawyer Michael Alan Schwartz welcomed the recommendation, saying it would redress an injustice.
In the letter to Groner, the Corrections Department said that Kilpatrick qualified as a carefully screened offender for placement in the Special Alternative Incarceration facility.
Worthy, who just two weeks ago completed a 10-month struggle to lock up Kilpatrick for probation violation, said she was not happy with the prospect. "I've never seen anything like this," she said Wednesday. Worthy said that 14 days is not enough time to determine whether Kilpatrick is suitable for boot camp, adding she will spell out her objections in a letter to Groner.
Groner, who chastised Kilpatrick for lying to the court and flaunting a lavish lifestyle in Texas while hiding assets, could not be reached for comment.
Kilpatrick's appellate attorney, Arnold Reed, said the former Detroit mayor isn't receiving special treatment while in custody and that the offer of boot camp is common for inmates like him. Nevertheless, Reed said he did not foresee Kilpatrick going into the program. "It's up to the judge," Reed said. "And based on what transpired ... in terms of him sentencing Mr. Kilpatrick beyond what the guidelines call for, I can only conclude that Judge Groner would not grant something like this."
Corrections spokesman Russ Marlan said that Kilpatrick was not being singled out or being specially selected for boot camp. "We didn't recommend him. It is standard procedure for those inmates who qualify," Marlan said.
The boot camp program has changed in recent years from the full-bore militaristic regimen of screaming drill sergeants of its early days, Marlan said. "It is more about re-entry than regimentation," Marlan said.
But it hasn't lost all of its military flavor. Inmates get their heads shaved and they are put through marching, physical fitness and tough work programs. However, counseling and re-entry strategies are now major components, Marlan said. Entry into the program is voluntary. The 440-prisoner program is located in Chelsea.
Prisoners who successfully complete the 90-day program are paroled for at least 18 months, with the first 30 days under strict supervision. The parolees can be assigned to halfway houses, required to wear electronic monitors or comply with other special conditions. Marlan said it is "a big incentive for prisoners" to earn early release though the challenging program.
Notable Canadian ruling on extreme prison confinement
A helpful reader from north of the border sent me this note about a notable and high-profile (and very lengthy) ruling about prisoners' constitutional rights in Canada:
I thought you may wish to write about this significant decision from a Canadian trial court about the meaning of cruel and unusual punishment in Canadian law. Your blog emphasizes American developments, but this case has an American emphasis as it relies upon expert opinion evidence provided by Craig Haney, and there is discussion as to the importation of American ‘supermax’ style imprisonment. The case is quite long [and can be found here]:
Media coverage can be found here. The media coverage is, of course, a bit sensational. From a prison lawyer perspective, the critical parts of the decision are at paragraphs 318–335 which indicate a new standard for interpreting long-term administrative segregation as constitutionally impermissible; as contrary to legitimate penological objectives.
June 9, 2010
"Executioner: Death by firing squad is '100 percent justice'"The title of this post is the headline of this interesting new piece at CNN based on an interview with a member of the last firing squad used in Utah in 1996 to execute a convicted murderer. Here is a snippet:
The former firing squad member asked not to be named, as he remains a law enforcement officer in the state. The man he helped execute, John Albert Taylor, was sentenced to death for killing an 11-year-old girl in 1989. Charla Nicole King had been sexually assaulted. A telephone cord was wrapped around her neck -- three times, her mother told authorities. She knew because she counted as she unwound it, trying to revive her daughter The officer agreed to recount his experience because he believes in the death penalty -- and thinks the firing squad method is plagued by misconceptions.
It is not like the scenes depicted in movies, with a condemned man tied to a stake and smoking a last cigarette before being riddled with bullets in a gruesome spectacle. Instead, he says over coffee, toast with grape jelly and an omelet, the process is instantaneous and carried out with the utmost professionalism. "It was anti-climactic," he says. "Another day at the office."
He has brought with him a stack of photos from Taylor's autopsy, including one of the man's heart, blown into three pieces.
Does he have any lingering effects from his role in the execution? "I've shot squirrels I've felt worse about," he says. He volunteered to participate, he said, and would do so again, given the opportunity. "There's just some people," he says, "we need to kick off the planet."
The officer remembers feeling a sense of responsibility that day, as he awaited the countdown to fire at Taylor, strapped into a chair 17 feet away with a target pinned to his chest. He remembers telling himself, "Don't (expletive) this up."
Recent related posts:
- Shouldn't we celebrate condemn's request that he "would like the firing squad, please"?
- Utah murderer who selected firing squad as execution method to get (high-profile) commutation hearing
- Utah getting ready for an "old school" execution
Do "mama grizzlies" have a particular approach to crime and punishment issues?
As detailed in this NPR piece and this Politico piece, one theme emerging from yesterday's election results is the success of female Republican candidates that had Sarah Palin's backing — or, as Sarah Palin call them, "Mama Grizzlies." Though it is probably too soon to figure out the long-term political impact of the conservative feminism that Sarah Palin seeks to stir up with her "mama grizzly" themes, it is not too early for me to speculate about whether "mama grizzlies" may adopt a particular approach to crime and punishment issues.
This recent Facebook posting by Sarah Palin endorsing a congressional candidate in Arkansas suggests that a mama grizzly politician seeks to "protect our great country’s freedom [while being a] pro-family, pro-2nd Amendment, fiscal conservative." It is not clear that this description connotes any particular perspective on crime and punishment issues, especially with respect to controversial modern issues like whether sexting should be subject to criminal prosecution or whether non-violent felons should forever lose their gun rights. As regular readers know, I believe a true "fiscal conservative" should be very concerned about excessive government spending on the drug war and mass incarceration, but it is not clear that many politicians who stress fiscal conservatism are especially bothered by the high fiscal costs of America's criminal justice systems.
Whatever might prove to be the criminal justice profile of so-called mama grizzlies, yesterday's election at the very least shows yet again how potent a political force Sarah Palin has become. Thus, I continue to think those eager to engineer criminal justice reforms ought to be reaching out to Palin and trying to convince her that such reforms could be very beneficial for all of America's grizzly cubs.
Some related posts:
- Green tea party: will Glenn Beck or Sarah Palin or other professed liberty lovers support ending pot prohibition in California?
- Should sentencing fans be excited about voters "throwing the bums out" of DC?
- "Sarah Palin, Marijuana Law Reformer?"
- "Legalizing marijuana not really a dopey idea"
- Is Governor Palin a real fan of jury nullification and pot decriminalization?
- What does the tea party movement have to say about taxing and spending on the death penalty, the drug war and mass incarceration?
- Did Sarah Palin or any others at the Tea Party Convention talk about pot prohibition or mass incarceration?
June 9, 2010 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1) | TrackBack
Lindsay Lohan doing her best to become technocorrections poster childSentencing fans now have yet another reason to enjoy the guilty pleasures of the movie Mean Girls: it seems that its star, Lindsay Lohan, may next appear on either a wanted poster or on a poster advertising SCRAM, the alcohol-monitoring technocorrections device that she is helping to publicize. This ABC News report explains why:
Lindsay Lohan is in hot water again -- this time over her court-ordered alcohol-monitoring ankle braclet.
According to People magazine, Lohan's ankle monitor sounded an alarm Sunday night while she attended an after-party for the MTV Movie Awards. It's unclear why the alarm was triggered, but typically authorities are alerted when the device is either tampered with or the person wearing it consumes alcohol.
Whatever the reason, it was enough for Beverly Hills Judge Marsha Revel to issue a bench warrant late Tuesday for Lohan's arrest, claiming the 23-year-old actress was "in violation for conditions on bail," according to US Weekly.
Because of the violation, Lohan's previous $100,000 bail has been revoked. The Los Angeles Times reported that the actress posted new bail of $200,000 to avoid being detained.
On Wednesday, Lohan's attorney and the prosecutor were back in court for a closed-door session with Revel. Lohan, who is due back in court July 6, was not required to appear. After the hearing, Lohan's lawyer, Shawn Chapman Holley, told TMZ that Lohan's anklet device "indicated the presence of a small amount of alcohol on Sunday night."
"Having just received the report, I am not in a position to speak to its accuracy or validity; however, Ms. Lohan maintains that she has been in complete compliance with all of the terms of her probation and her bail," Holley said.
In messages posted on her Twitter account, Lohan also denied that she had done anything wrong and said the anklet, known as a SCRAM, or Secure Continuous Remote Alcohol Monitor, should have detected nothing. "I did not violate anything at all," she tweeted. "My SCRAM wasn't set off ... It's physically impossible considering I've [done] nothing for it to go off. All of these false [reports] are absolutely wrong."
Lohan was fitted for the device May 24 after she failed to show up for a mandatory hearing on her probation related to an earlier DUI case....
[A recent] report in US Weekly magazine [said] that the actress, who previously wore the bracelet in 2007, tried using a paper clip to jam the signal and perfume (which is high in alcohol content) to confuse the sensor. The magazine said Lohan denied attempting both tactics. But she wouldn't be the first to try to bypass the bracelet....
Vickers Cunningham, retired Texas District Court Judge and chief operating officer of Recovery Healthcare Corporation, a major SCRAM distributor, said that some offenders have attempted innovative strategies to bluff the booze detector.
Novices place cellophane or foil between the skin and the sensor. "The more creative people have tried to simulate human skin by using baloney or salami or ham," he said. One even stuck chicken skin to his ankle. But he said that the bracelets include several anti-tamper sensors....
He said tactics like Lohan's alleged perfume-spraying strategy are known as attempts at "spiking the bracelet." Offenders are told not to use perfume and other topical alcohol-based products around their ankles because it sends the reported alcohol level through the roof and masks any alcoholic beverages the person might have consumed.
But Cunningham said probation officers can tell when offenders spike the bracelets with gasoline, perfume and other substances and can send them before a judge to explain why they contaminated the sample.
Lawyer turned Ponzi schemer turned cooperator Rothstein gets federal prison term of 50 yearsAs detailed in this Reuters report, "South Florida Ponzi scheme mastermind Scott Rothstein was sentenced to 50 years in prison on Wednesday for an investment fraud that bilked clients out of more than $1 billion." Here's more:
The sentence was more than the 40 years federal prosecutors had recommended for Rothstein, a disbarred lawyer who pleaded guilty to racketeering and fraud conspiracy charges in January. He had faced up to 100 years in prison but his lawyer had asked U.S. District Judge James Cohn to give him no more than 30 years.
Notable new testimony from DPIC on the economic costs of the death penaltyA helpful reader pointed me to this new written testimony from the Death Penalty Information Center's executive director, Richard Dieter, concerning the death penalty's economic costs. Here is how DPIC's website explains the background and basics of this document:
On Monday, June 7, the Pennsylvania State Government Management and Cost Study Commission will hear from experts on proposals to cut the costs of various government programs. The Commission, established in 2009, is comprised of private and public sector cost-minded leaders in Pennsylvania and has been charged with studying the management of government operations and making recommendations for cost-cutting measures.
Among the experts who will testify at the hearing is Richard Dieter, Executive Director of the Death Penalty Information Center, who will provide information on the high costs of the death penalty. His testimony states: "[T]he death penalty is not an essential government function and, in fact, is probably one of the least effective and most costly programs, when measured in terms of the people it affects. What Pennsylvania calls the death penalty is in reality a very expensive form of life without parole. Despite having the fourth largest death row in the country, Pennsylvania has not had an execution in 11 years" and no "contested execution since 1962."
Some recent related posts on the costs of capital punsihment:
- Georgia struggles to pay for a costly capital system
- The challenging economics of death causing problems in Chicago
- Great new (though still dated) examination of the death penalty and plea bargaining
- CNN now talking about the costs of the death penalty and state reforms
- States considering laying off the death penalty during tough economic times
- The economic case against the death penalty getting more and more attention
- More discussion of cost concerns in debates over the death penalty
- Capital case cost concerns continue to inform reform debate
- Still more discussion of the costs of the death penalty
- "Opponents Focus On Cost In Death Penalty Debate"
- NY Times editorial assails "High Cost of Death Row"
- New DPIC report assails costs (and opportunity costs) of death penalty administration
- Is it true that nobody's view on the death penalty can be influenced by its costs?
- "Death penalty kills the budget"
US Sentencing Commission publishes fascinating new survey of district judges' views on sentencing
Just posted on the website of the US Sentencing Commission is this new document titled "Results of Survey of United States District Judges: January 2010 through March 2010." As the website explains, the "Sentencing Commission undertook to survey all United States district court judges concerning their views and opinions on a wide range of sentencing policy issues," and this publication presents the results of that survey. Here are a few snippets from the report about the survey:
The Commission’s 2010 survey asked questions grouped into five broad areas: (1) statutory and structural sentencing issues; (2) sentencing hearings; (3) guideline application issues; (4) departures; and (5) general assessments. Judges were provided an opportunity to offer written comments in addition to or to expand upon their answers to the survey questions....
Abt [the survey administrator] reported to the Commission that, of the 942 judges to whom the survey was sent and who did not ask to be excluded from the survey, 639 responded to Abt. This represents a 67.8 percent response rate to the survey. The judges who responded to the survey presided over a significant portion of the cases in which federal offenders were sentenced during fiscal years 2008 and 2009. During this two-year period, district court judges imposed original sentences on 146,511 individual federal criminal offenders. Based on an analysis performed by Abt, the 639 judges who responded to the survey sentenced 116,183, or 79 percent, of these offenders. Of the 50 judges who sentenced the most individual offenders during the two-year period from fiscal year 2008 to fiscal year 2009, the response rate was even higher. Of the judges in this group, 43 responded to the survey. This represents an 86 percent response rate by these judges. Together, these 43 judges account for 31 percent of all offenders sentenced nationally during that period.
The results are reported in detailed charts which are hard to summarize but are worth careful study by all post-Booker sentencing participants.