August 10, 2010
Interesting ground-level perspective on needed NJ reforms for sentencing and correctionsThe Trenton Times has this interesting new op-ed headlined "To curb corrections costs, reconsider sentencing, parole." The piece is authored by David Shebses, who worked for many years at the East Jersey State Prison "as supervisor for education and then as an executive assistant to the warden." Here are excerpts from his commentary:
[A] little historical perspective. When I started my career in 1970, New Jersey's population was just under 7.2 million, and roughly 5,500 people were incarcerated in the state's nine institutions....
[Thereafter] mandatory minimums were used on crimes such as murder, assault and robbery. As the 1980s unfolded, the Legislature decided to apply this sentencing concept to drug-related crimes, so that by 1990, the prison population exploded. It rose more than fivefold, from 5,500 inmates in 1970 to more than 30,000 inmates in 1990, while New Jersey's population had only risen by 6 percent, to 7.73 million....
[I] suggest the following:
1) Eliminate mandatory minimum sentences for all crimes....
2) Stop incarcerating most people who are convicted of using most drugs....
3) Abolish the parole system. Parole is based on a false premise, namely, that it is possible to predict human behavior. It is not possible....
4) Instead of parole, put money and staff into the county probation departments and have the state assume the responsibilities for both probation and re-entry programs....
5) Consider that how long an inmate serves should be a matter of statute and trial....
Incarceration is expensive and necessary for violent and repetitive offenders. But we have too many people incarcerated due to the mandatory minimum system and the zero-tolerance philosophy that underlies it. Many of these people just don't need to be in jail, and their incarceration costs the rest of us a fortune.
August 9, 2010
"Race Factor in Death Sentences"The title of this post is the headline of this notable new commentary atThe Huffington Post by Carol Turowski, who serves as Co-Director of the Innocence and Justice Clinic at Wake Forest University School of Law. Here are snippets from the piece that, I suspect, will get some pro-death-penalty readers going:
The release last week of a study conducted by two law professors at Michigan State University College of Law has reignited the debate over the question of what role race plays in North Carolina when defendants are facing a death sentence. After examining 5,800 cases in North Carolina that were eligible for the death penalty from 1990 through 2009, the study concluded that a defendant in North Carolina is 2.6 times more likely to be sentenced to death if at least one of the victims is white. Moreover, the study found that more than 40 percent of defendants on North Carolina's death row were sentenced to death by a jury that was either all-white or included only one person of color. It was also determined by researchers that, during the jury selection process, prosecutors statewide struck qualified blacks from the potential jury pool at more than twice the rate of whites....
The study underscores the importance of the one-year old N.C. Racial Justice Act which allows inmates the chance to challenge their death sentences if they believe race was a factor in their sentencing. This ground-breaking legislation was adopted to counteract the racial disparities in death sentencing which have been observed by capital defenders and death penalty litigation organizations for decades.... A similar study conducted by a professor at the University of Colorado in Boulder last month concluded that someone accused of killing a white person in North Carolina was nearly three times as likely to get the death penalty as someone accused of killing a black person.
While the impact of these studies on the death row inmates' cases still remains to be seen, the conclusions reached by the researchers raises serious concerns about how we consciously or unconsciously view an individual's race in determining whether they should be given the most serious penalty our criminal justice system has to offer. If we have any doubts about whether race played a role in the practices of a prosecutor or in the determination of a jury, then it should be axiomatic that the sentence of death should be commuted to life. A racially conscious society must refuse to submit to the rhetoric of "punishment must fit the crime" and seek a higher moral ground that says a potentially racially-biased death sentence is intolerable in North Carolina.
The real issue going forward is whether North Carolina is willing to be a trailblazer in setting the example for other states who have equal concerns over whether the color of a person's skin could have contributed to their being considered for death or was a factor in their receiving a death sentence; it is our choice to make.
I have emphasized two particular sentences in this commentary because both the phrasing and claims seem noteworthy and worthy of debate.
Seeking "on-the-ground" reports on what is going on with crack sentencings
It has now been almost two weeks since the House of Representatives voted in favor of the Fair Sentencing Act of 2010, and almost a full week since the FSA became law. Though I have now seen lots of editorials from large and small papers praising the modification of crack mandatory sentencing provisions, I have yet to see a single story about how the new law is starting to impact actual crack sentencings.
There is a practical reason I am in a rush to figure all this out: there are, on average, over 100 crack sentencings in federal court every week. And I had been hearing that a whole lot of crack sentencings had been put on hold after the Senate passed the FSA way back in March. Further, the US Sentencing Commission now has less than three months to conform the crack guidelines to the intricate (and not always pro-defendant) provisions of the FSA. So I wonder is there a rush to get sentencings done now, or is there more delay, or does this vary district-to-district and courtroom-to-courtroom?
I hope folks might use the comments or send me e-mail with any and all notable post-FSA-enactment crack sentencing reports. Thanks!
Is Ohio (and the common law) not tough enough on negligent vehicular homicide?The question in the title of this post is one inspired by this local story from the Columbus Dispatch, and one I am now planning to ask first-year students in my Criminal Law section later this month. The story is headlined "To widow, sentence highlights unfairness: Tough penalty urged in vehicular deaths," and here are the details:
Richard Crabtree was killed Feb. 1 in a car accident. He left behind a wife and three children. The police found the witnesses to her husband's death and brought charges against the young man who ran a red light and killed him.
The prosecutor secured a conviction on the most-serious charge. The judge's sentence was as tough as the law allows. Jenny Crabtree knows and appreciates all of that. But in the matter of the state of Ohio v. Steven J. Tirpak, she also will argue that justice -- for her, her husband, their three children -- was not served.
"Our lives are totally destroyed, forever; and he got 90 days in jail," the Westerville woman said.
Richard Crabtree left work early on Feb. 1 to meet his two older daughters, now 6 and 10, at the school-bus stop. Just before 4 p.m., Crabtree and a driver ahead of him were in the middle of the busy intersection of Polaris Parkway and Worthington Road, waiting to turn left to head north on Worthington. The light turned red.
"Mr. Crabtree had already entered the intersection," Detective Sgt. Steve Fridley of the Westerville police said. "You have the right to clear that, once everything's stopped. The other vehicle, for whatever reason, ran the red light."
The other vehicle was driven by Tirpak, then a 20-year-old Galena man with a history of speeding and criminal convictions for such offenses as theft and possession of drug paraphernalia.
Tirpak never accepted blame for the crash, Fridley said. He insisted the light was yellow when he broad-sided the 46-year-old Crabtree, killing him. "Fortunately for us, we had multiple witnesses" who verified the light was red, Fridley said.
Tirpak wasn't under the influence of drugs or alcohol, and he had a valid driver's license. A review of the evidence left police with two charges, vehicular homicide and vehicular manslaughter. Both are misdemeanors.
In June, Tirpak pleaded no contest to vehicular homicide, which is the more-serious charge and is punishable by up to 180 days in jail and a $1,000 fine. Judge David P. Sunderman found him guilty in Delaware Municipal Court.
Sunderman, who declined to be interviewed for this story, sentenced Tirpak last month to 180 days in jail with 90 days suspended, which allowed the court to have further control over him by placing him on five years of probation. He also was fined $1,000, sentenced to community service and lost his driver's license for five years.
"He got the max," said Peter Ruffing, city prosecutor for Delaware. "The judge threw the book at the kid," Jenny Crabtree acknowledged.
When the crash occurred, she prayed that the other driver would be remorseful and otherwise law-abiding. She could make peace with that. But Tirpak has a record of not abiding the law, and he did not apologize. He did not even look at her as she talked about her loss at sentencing. "What I got was the exact opposite," she said....
Because of her experience, Crabtree intends to lobby state lawmakers to strengthen vehicular-homicide punishments in Ohio. Ruffing would not speak about the Tirpak case in any detail. He said it is his job to uphold existing laws, not to criticize them or lobby that they be changed, as Crabtree hopes to do. "That's certainly an understandable position by a widow," he said....
Crabtree said the six months since her husband's death have been financially and emotionally crippling. She looked into a civil lawsuit, but Tirpak has no assets. She can expect only $12,500 from his insurance company.
There is a bit of an anachronism in the question in the title of this post because vehicular homicide crimes were largely unknown to the early common law (even though it was surely possible to kill a pedestrian while driving negligently a horse-and-buggy). But the common law did generally confront the issue of merely negligent killings and generally concluded [in the US] that such killings should not and could not lead to any homicide charges. [In most US jurisdictions before modern reforms, recklessness or extreme negligence was needed to make a matter criminal.[
Because Ohio has statutory provisions that make reckless killings a felony, I am assuming that prosecutors in this case concluded that they would only be able to prove that the deadly driver Steven Tirpak was driving negligently when he caused a fatal accident. [A reader rightly notes that Ohio still requires a form of gross negligence for criminal liability, though the standard is set forth in language not quite as strong as was at common law.] That suggests that the victim's family should be at least by thankful that Ohio has not merely codified common-law homicide rules. If it had, it is possible Mr. Tirpak might not have been subject to any criminal prosecution at all.
UPDATE: In response to helpful comments, I have tweaked the commentary in this post to be more accurate. Most of the tweaking appears in brackets above.
STILL MORE: I see that Scott Greenfield has an interesting new post here at Simple Justice discussing this case.
August 8, 2010
"Unyielding law means sex offender can't stay, can't move"
The title of this post is the headline of this new piece in the Miami Herald, which gets started this way:
Joseph Mortimer and his wife took out an equity loan on their longtime home in Richmond Heights during the real-estate boom, fell into foreclosure in February and then got scammed for $3,000 at a loan-modification seminar. But their recession story has a twist: Mortimer can't move to another nearby home because he was convicted of a sex offense in 1993.
Mortimer's problem illustrates a quirk in the Miami-Dade County ordinance that bars sex offenders from living within 2,500 feet of a school, park or playground. Because Mortimer lived in his Southwest Miami-Dade house before the ordinance was passed in 2005, he was allowed to stay there despite its proximity to two schools. But the location of his newly purchased house -- about one block away -- violates county law.
"I don't know what to do," said Mortimer. "Every time a new law comes out, it's like I'm being convicted all over again."
Mortimer, 44, pleaded guilty in 1993 to attempted sexual battery on a minor for molesting his girlfriend's 15-year-old daughter. He later married the girl's mother, underwent therapy and completed his probation in 2002.
He received a withhold of adjudication, meaning no felony conviction appears on his record, and holds a job as a heavy-equipment operator with Miami-Dade County. In court recently, Mortimer begged Miami-Dade Circuit Judge Jorge Cueto for help.
The judge said there was nothing he could do. "The man is doing really well. He's been a productive citizen for years," Cueto said in court. "But I don't have the power to change the law."
"Judge to fraudster: Play poker or go to prison"The title of this post is the evocative (and a bit inaccurate) headline for this report of a novel term of a state sentence of a white-collar criminal who is also a professional poker player. Here are the details:
As criminal punishments go, this one's a royal flush. A convicted scam artist in Albuquerque has been given a novel order by the judge sentencing him: Go play poker.
Samuel McMaster, Jr., a former insurance agent and poker player, pleaded guilty to 26 felony charges, including securities fraud, in a New Mexico courtroom last week, reported KOB TV. He was accused of bilking investors of their money, and using at least some of the proceeds to fund his poker playing.
"The financial records showed a lot of withdrawals from ATM machines at different casinos and we have lots of evidence to show he likes to play poker,” prosecutor Phyllis H. Bowman said.
McMaster faces up to 12 years in prison, but the judge agreed to the defense lawyer's request for a unique punishment. The judge suspended the sentence for six months, to give McMaster a chance to pay back some of the $440,000 he took from investors.
If McMaster can consistently pay $7,500 per month to his victims for the next six months, he will face a reduced prison sentence. And to make it possible for him to earn that kind of cash, the judge has allowed him to travel out of state to play in poker tournaments.
Innocence claim and execution pace prompting capital questions in OhioThe top headline on this front page of this Sunday's Columbus Disptach asks "Timeout From Death?" and follows with this subheading "Questions in the case of a man heading toward execution prompt calls for a review of Death Row cases - and a possible moratorium." Here is the start of a lengthy article:
The former high-school football star sits with shackles around his thick legs and says things you would expect from a man on Death Row.
He is innocent. Someone else shot and killed those three people. He has a good alibi. Local police poisoned witnesses against him. The photo lineup of suspects was rigged. There was a phantom witness. "I can't see me being put to death," said Kevin Keith, 46, who is scheduled for execution Sept. 15 and the requisite clemency hearing this week. "It would be a sad day for me, my family and the justice system."
Although they all might not believe everything Keith says, or that he's innocent, a growing number of people have doubts about his casencluding the man who could save him. "It has circumstances that I find troubling," said Gov. Ted Strickland, who has the power to grant Keith clemency. "We are looking at that case very seriously."
Cases such as Keith's, coupled with Ohio's pace for a record number of executions this year, have prompted current and former high-level officials to call for a comprehensive review of all Death Row casesnd possibly a moratorium on executions. The officials include two former prison directors and three prominent Republicans: Ohio Supreme Court Justice Paul E. Pfeifer, former Attorney General Jim Petro and state Sen. David Goodman of New Albany.
Adding to the momentum are five death-sentence commutations by two governors since 2003, passage of a strong DNA law to avoid wrongful convictions, and exonerations of three inmates because of new DNA test results.
Pfeifer, who first urged a Death Row review in a Dispatch story in May, remains the strongest advocate for a review. His six colleagues on the court, plus Strickland and Attorney General Richard Cordray, have no interest in a study commission, much less a moratorium. "This isn't about me or anything I might do," Pfeifer said, "although I might have to revisit that if the new governor says, 'I don't want any part of it.'"
Pfeifer was one of three Republican state senators who resurrected Ohio's death-penalty law in 1981 after the old law had been declared unconstitutional. Pfeifer said he is not suggesting that any of the 160 men and one woman on Death Row are innocent or should be set free, only "whether or not death is the appropriate penalty."
Petro supports the death penalty but favors forming an independent task force to examine Death Row cases and halting executions while that review is being conducted. "We should show restraint, caution and diligence with these cases," Petro said. "DNA has opened a lot of people's eyes with what it can do. When you are talking about death, you can't afford to make even one mistake."
Two former state prison directors, Reginald A. Wilkinson and Terry Collins, who witnessed 34 of 39 executions since 1999, agree that the Death Row cases should be reviewed to see if they are the "worst of the worst," the standard set down when Ohio resumed capital punishment 11 years ago.
Wilkinson, director from 1991 to 2006, takes it a step further. "I'm of the opinion that we should eliminate capital punishment," he said. "Having been involved with justice agencies around the world, it's been somewhat embarrassing, quite frankly, that nations just as so-called civilized as ours think we're barbaric because we still have capital punishment."
But Strickland doesn't support an additional sweeping review. "I would caution against setting up sort of an extra-judicial process to replace what is a very understood and rigorous approach to these matters," he told The Dispatch. "I've got an obligation to carry out the law," the Democratic governor said. "I try to do that extremely carefully. Any death-penalty cases we've dealt with since I've become governor have been given much scrutiny and analysis."
The strongest voices against a fresh look at the death penalty are Attorney General Richard Cordray; former congressman and current Republican candidate for governor John Kasich; former U.S. Sen. Mike DeWine, the GOP candidate for attorney general; Franklin County Prosecutor Ron O'Brien; and John Murphy, head of the Ohio Association of Prosecuting Attorneys.
"I'm confident so far, we haven't had any miscarriages of justice on my watch," Cordray said. "I haven't seen the justification for a moratorium here in Ohio."
Some recent related posts:
- Potent(?) pace of executions in Ohio starting to produce pushback
- Might Ohio keep pace with Texas in the number of executions in 2010?
- The latest data on the shrinking death row in Ohio
- Ohio succeeds again with one-drug execution protocol
- "Ohio inmate to get 1-drug, slower, execution"
- Reports on Ohio's success with one-drug lethal injection protocol
- A few early questions following Ohio's successful one-drug lethal injection execution
- "A new Texas? Ohio's death penalty examined"
- Ohio — aka the Texas of the north — setting busy execution schedule
Interesting series at The Guardian concerning the war on drugs
The UK paper The Guardian has lately had a lot of interesting coverage of international drug policy issued and debates, much of which can be found at this topical page. And these three newest piece provide especially worthwhile weekend reading: