January 19, 2010
Accounting for the skewed punishment accountability in state crime codesA helpful reader alerted me to this interesting column from the Philadelphia Inquirer, which is headlined ""Pa. punishments often go beyond the crime." The piece reports on important work being done by Professor Paul Robinson and his students concerning the perceptions and realities of sentencing in one state's criminal justice system. Here are a few highlights:
Did you know that peeking at someone's e-mail in Pennsylvania carries a stiffer maximum penalty than keeping a slave? Or that state law looks more harshly at someone who stole $2,000 than someone who sold a child?
These are just some of the weirder quirks in the piecemeal approach to lawmaking documented by a Penn research group for the state legislature. University of Pennsylvania law professor Paul Robinson had his students determine this fall whether criminal laws were written in an orderly way. What they found was a "hodgepodge," as State Sen. Stewart Greenleaf, chairman of the Senate Judiciary Committee, put it. "It's more than inconsistent," the Republican said. "It's unfair."
Students found scores of serious crimes with lesser penalties than penalties for lesser crimes. And polling of Pennsylvania residents turned up an additional 100 or so laws whose sentencing ranges were out of whack with public sentiment.
Robinson blames "aggressive politics." The more legislators feel the need to show their constituents they're responsive to the latest outrage in the media, the more punitive are the laws they write. "Usually some incident happens, it gets in the headlines, and legislators get worked up," he said. "They feel obliged to do something about it. The natural effect is to exaggerate the penalty."
Pennsylvania last gave its laws a good scrubbing in 1972, when it simplified, clarified, and organized its criminal code. Since then, the code has more than doubled in size, to 636 offenses and suboffenses. On top of that, legislators have added definitions of criminal offenses in 1,648 more sections of state law.
Researchers gauged the vastly different attitudes Pennsylvanians have about how much punishment should fit a crime by asking 131 residents from across the state to compare the seriousness of offenses. Take slavery, for instance. Keeping an adult against his or her will, according to the law, is a first-degree misdemeanor, with a maximum penalty of five years. But Pennsylvanians found that crime as serious as a first-degree felony, which can bring a 20-year term.
In most examples, the law proved harsher than popular opinion. The law puts the maximum sentence for selling a bootlegged Beatles CD at five years. Pennsylvanians thought it was worth no more than 90 days. Reading someone else's e-mail without permission carries a seven-year term. Again, Pennsylvanians thought 90 days was more like it. ...
The problems with the law run deeper than disorganization. Unequal justice erodes people's confidence in the system. Matt Majarian, one of Robinson's second-year students, says: "If people have little confidence in the system, they will be less willing to serve on juries, less willing to call police, they'll be more willing to engage in vigilantism. This results in real problems in law enforcement and criminality."
The students presented their findings before the state Senate and House Judiciary Committees in December. They've proposed that the legislature reorganize its criminal code, evaluate the relative severity of punishments, and ensure that laws are not written too broadly.
I strongly suspect that Pennsylvania is not at all unique in this regard, and I hope Professor Robinson (or others) will consider conduct this sort of study and analysis of skews in other state criminal codes.
A sad sentencing in memoriam: Professor Daniel J. FreedI am so sad to have to report the passing of a true giant in the field of sentencing law and policy, Professor Dan Freed. This Yale Law School notice provides the details and some fitting accounts of some aspects of his extraordinary contributions:
Yale Law School Professor Emeritus Daniel J. Freed ’51, a pioneer in the criminal justice process and a key figure in the development of clinical education at the Law School, died Sunday, January 17, 2010, in New York. He was 82. Freed was Clinical Professor Emeritus of Law and Its Administration, specializing in sentencing and criminal justice administration. He died of renal and congestive heart failure.
“Dan Freed was a unique scholar, reformer, and social activist,” said Yale Law School Dean Robert Post '77. “He had an unmatched capacity to bring together people on all sides of controversial issues to create thoughtful, reflective, productive and collaborative working groups. He spent a lifetime seeking to realize his goal of making the criminal justice system fairer and more effective. He succeeded to a remarkable degree. We shall miss him deeply.”...
He was appointed to the Yale Law School faculty in July 1969 to oversee the development of the Law School’s clinical program, which he directed until 1972. He was one of the first professors in the country to conduct workshops and seminars on criminal sentencing, which at the time was discretionary and indeterminate. From 1972 to 1987, he ran the Daniel and Florence Guggenheim Program in Criminal Justice at Yale Law School and from 1987 to 1994, the Criminal Sentencing Program. In 1989, he co-founded the Federal Sentencing Reporter, a law review dedicated to a sustained and accessible conversation about sentencing law and policy among scholars, judges, practitioners, and policymakers. He was a trustee of the Vera Institute of Justice and received the Glenn R. Winters award from the American Judges Association in 1992. He retired from Yale Law School in 1994 but continued to teach as a professorial lecturer in law until 2006.
“For four decades, Daniel Freed examined and exposed the parts of the criminal justice process that were, when he began his work, most opaque and basically unregulated by law: bail and sentencing,” said Lafayette S. Foster Professor of Law Kate Stith. “He was one of the early theorists and proponents of sentencing guidelines, now commonplace, though he sought guidelines that left considerable room for individualized sentencing.”
“Dan’s work bridged the gap between judges and academics, practitioners and politicians, policymakers and the public,” said U.S. District Court Judge Nancy Gertner ’71 of the District of Massachusetts. “In his seminars on sentencing, the conferences he organized and the articles he wrote, he brought together representatives of all sides of the criminal justice debate, in many cases for the very first time. And he challenged them to create a system that was at once principled and just. His loss — as a voice in this discussion, as a mentor for many of us (who consider ourselves ‘Freedians’), and as a leader — is irreplaceable.”...
Professor Freed’s books include The Release, Control, and Detention of Accused Juvenile Offenders between Arrest and Disposition (with Timothy Terrell, 1980), and The Nonsystem of Criminal Justice (1969). His Bail in the United States, co-authored in 1964 with Patricia Wald ’51, is widely seen as the basis for the groundbreaking Bail Reform Act of 1966....
Professor Freed’s family has asked that contributions be made to the Brattleboro Museum Garden Project in Honor of Dan Freed (Brattleboro Museum and Art Center, 10 Vernon Street, Brattleboro, VT 05301).
I suspect I may speak for hundreds, if not tens of thousands, of "Freedians" when I say that Dan's passing is a blow to justice and a reminder of how passion and insight can be combined with humility and grace in a lifetime commitment to improve the administration of justice. I had the good fortune and honor to get to know Dan and to work with him on the Federal Sentencing Reporter over the last two decades, and I only hope that my efforts and energies in the field of sentencing reform might serve as an on-going tribute to Dan's greatness.
January 18, 2010
Another reminder of race and criminal justice realities to honor MLK's legacy
I have generally made a habit of honoring Dr. Martin Luther King's Day by encouraging everyone to reflect on the historic and modern intersection of racial issues and criminal justice realities. I will do so again today principally by providing links to some prior MLK Day posts and also to other more recent posts spotlighting the enduring racial dynamics that surround the modern administration of criminal justice.
As always, readers are encouraged to add their own perspectives via the comments (and also encouraged to keep it civil in honor of one of America's great civil rights leaders).
Some related posts:
Seventh and final USSC regional hearing this week in Phoenix
As detailed in this brief public notice, the US Sentencing Commission has its seventh (and I believe final) regional public hearings on tap for this coming week. This regional public hearing is scheduled for January 20-21, 2010 in Phoenix, Arizona, at the the Sandra Day O’Connor United States Courthouse.
As detailed in this official agenda, another fascinating group of invited witnesses are scheduled to testify regarding federal sentencing policy in this regional hearing. As has been its practice, the USSC will likely post some of the written testimony on its website soon. As I have said before, all the regional public hearing testimony is worth reading.
Finally, I am pleased to see that this regional session includes a panel providing a "View from Academia." The first three regional hearings all included a panel of academics, but the Sentencing Commissioners subsequently became less interested in hearing about how the federal sentencing system looks from various regions of the ivory tower. I am glad to see the scholar eggheads back in the mix this last time around.
"Anti-death penalty movement wooing conservatives"The title of this post is the headline of this notable article in today's Washington Post. Here are excerpts:
The Roman Catholic church has long been an organized and vocal critic of the death penalty, but [a] new effort is trying to bring in other conservatives shaped by both evangelical faiths and political ideology. Now, liberals and conservatives — longtime opponents on contentious social issues from abortion to capital punishment — are working together in a time of strong political polarization.
The effort took center stage at the National Coalition to Abolish the Death Penalty's annual conference over the weekend in Louisville.... Shari Silberstein, executive director of Equal Justice USA, a Brooklyn, N.Y.-based anti-death penalty organization, said working with conservatives is about common sense and common ground. "It's not really an ideological question," Silberstein said.
The effort has been backed by Richard Viguerie, a fundraiser and activist considered the father of the modern conservative movement. Viguerie, in a July 2009 essay in Sojourners magazine, wrote that executions are supposed to take the life of the guilty — but noted there are enough flaws in the system to fear an innocent person has been put to death.
Viguerie noted that death row inmates have been exonerated by DNA evidence, raising the prospect that prosecutors and juries made mistakes in cases without scientific evidence and in cases that predate the science. "To conservatives, that should be deemed as immoral as abortion," Viguerie wrote.
And as lawmakers continue to slash budgets because of the slumping economy, many are wondering whether the price tag of the death penalty and the resulting drawn-out legal process is worthwhile. The winding series of appeals often runs up huge legal bills for states, which many advocates say is often more expensive than the cost of life imprisonment....
Not all conservatives are open to [this] pitch. Kent Scheidegger, legal director of the Criminal Justice Legal Foundation and an outspoken capital punishment supporter, said most of the costs of a death penalty case come from "exhaustive investigation" of the defendant's background and should be cut out. "I think those who are falling for this line are misguided," Scheidegger said. "The death penalty does not need to cost more than life imprisonment."
While there are no hard numbers on how many conservatives have joined the anti-capital punishment campaign, those involved say it's a growing movement.
January 17, 2010
Young kid killer of two (including dad) gets sentence of residential treatment
This CNN report, which is headlined "Arizona boy who admitted killing father sentenced to treatment," details the sentencing outcome in a sad and sadly sensational double-killing that took place in Arizona a few years ago. Here are the basics:
A 10-year-old Arizona boy who admitted to shooting and killing his father and another man in 2008 was sentenced Thursday to "in-patient treatment" that could go on for several years, according to the prosecutor. The boy pleaded guilty in February to one count of negligent homicide in exchange for a plea deal that dropped the two counts of murder he was charged with initially.
The boy was accused of killing his father, Vincent Romero, 29, and Tim Romans, 39, who rented a room in Romero's home in St. Johns, Arizona. Both men were found dead at the home November 5, 2008, and police said the next day that the boy confessed to shooting them with a .22-caliber weapon. At the time, the boy was 8.
"Under the plea agreement, he can be there (in treatment) up until he is 18," Apache County, Arizona, Attorney Michael Whiting said after the sentencing. "We hope that the treatment won't take that long. Obviously, it's not going to be successful if he is there when he is 18, and they are still treating him."
Whiting did not specifically describe what type of treatment the boy will undergo, beyond saying a psychiatrist will be involved and that the youth will be kept at his treatment facility with no ability to leave. The judge in the case ordered follow-up evaluations of the boy every two and a half years to update court officials on his progress.
Defense attorney Ron Wood said the boy was upset and crying in court during the sentencing and, "He was frightened." The boy apologized and "accepted responsibility for what he did," Wood said.