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September 4, 2010

"Prison for pot? What message does that send?"

The title of this post is the headline of this commentary authored by Vidda Crochetta, who is Vermont's coordinator for Marijuana Resolve, Inc.  Here are excerpts:

The 2008 Vermont Young Adult Survey reports that "just over 74 percent of respondents perceived that young adults getting high on marijuana ‘now and then' is viewed as being fairly normal and acceptable." Instead of respecting their choices, however, the preceding generations are busily disinheriting our young adults from their future.

When a state spends more money locking up people than it does educating them, it's not surprising to learn that the United States incarcerates more of its young people per capita than any other country in the world....For too long, some prevention-prohibition groups have claimed to have the interest of our youth in mind, while shamelessly misusing them in their continuing War on Drugs. Our youth are being used as pawns in an otherwise adult confrontation. The real nature of the drug war is a protracted effort by some "adult" Americans to control the behavior of other "adults" who do not conform to their notion of acceptable personal drug use.

One of the salient arguments from anti-marijuana groups is that decriminalizing marijuana sends the wrong message to Vermont youth that marijuana use is acceptable. That's partially true. We are sending the message that it is acceptable - for adults! In the same way we send the message that it is legally acceptable for adults to smoke cigarettes and drink alcohol. And, in the same way that underage use of tobacco and alcohol is illegal, it would be illegal to sell to or encourage underage use of marijuana.... With marijuana regulated like alcohol, we can better protect our children than we do now with it in the illegal market.

It is human nature to inhale or drink some substances intentionally. It's the things we don't inhale or drink intentionally that cause me more concern. But, if some adults want to smoke two packs a day or knock back a six pack, I'm not convinced that they belong in jail, anymore than marijuana consumers do.

Moreover, it is misleading to suggest that all marijuana use automatically equates with harm or abuse. In fact, the majority of alcohol and marijuana consumption is moderate, not abusive. (I admit that the same cannot be said for tobacco.) Neither abuse nor use of drugs, however, should trigger a clarion call for prison sentencing guidelines in absence of an attending crime. Marijuana users are selectively demonized as drug abusers and criminals; they do not, however, generally possess criminal intent or drug abuse behavior.

In the end, if we want to send the right message to children, why do the adults have to lock-up each other to teach it to them? Misinformation, applied as truth, helps to perpetuate our distended and draconian prison culture. In the balance, it is important to help educate the community to understand the broad picture of what lawful and responsible marijuana use means for the safety and welfare of all ages.

Some related posts on pot policy and politics:

September 4, 2010 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (14) | TrackBack

South Carolina county now producing sex offender newspaper

As detailed in this local article, which is headlined "A new way to keep tabs on sex offenders hits newsstands," at least one county in South Carolina is not content to place sex offender registration information only online. Here are the details:

It’s not the most enjoyable thing to read, but law enforcement officials say it's necessary.  “When you are convicted of certain offenses, you are required by the court to register as a sex offender,” says Captain Chris Cowan of the Richland County Sheriff’s Department.  “What we try to do is not only provide that information online, but to produce publications that are accessible to the community.”...

The publication lists more than 850 sex offenders, and while they have completed their sentences, Cowan believes that the public has a right to know if a sex offender is living in their community....  Currently, 40,000 copies of the newspaper have been distributed throughout the Midlands.

It's an aggressive approach to monitoring sex offenders; however, Tiffany Edwards doesn't feel that it’s unfair.  “I think everyone should know where these people are living, especially if you have kids,” Edwards said. “I have a child, so I want to know who is near me and in my neighborhood.”

I wonder if they take advertisement in this newspaper. I ask about ads in the sex offender newspaper half-jokingly, but I do think it might be useful for there to be links to my blog and other resources that discussion sex offender sentencing law and policy in these publications. (Of course, I would be too keen on having my picture run with a plug for this blog.)

September 4, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (11) | TrackBack

September 3, 2010

"Of Rebels, Rogues and Roustabouts: The Jury's Second Coming"

The title of this post is the title of this new piece from Professor Jenny Carroll now appearing on SSRN.  As its abstract reveals, this paper would be a timely read for anyone eager to think about the labors of juries during this Labor Day weekend:

This article examines the role of the jury in a post-Apprendi justice system.  Apprendi and its progeny recognize the vital role the jury plays in establishing the legitimacy of criminal convictions and sentences.  I contend that the Apprendi line confirms the jury’s responsibility, as representatives of the community, to give the law meaning in their determination of criminal culpability.  In this, Apprendi seeks to restore the original role of the jury as the bridge between the law itself and the community the law seeks to regulate. 

This restoration is incomplete, and the jury’s true significance cannot be realized, without a recognition of the jury’s original right to judge law as well as fact.  Only through the revitalization of this power to nullify can the jury assume its intended role and provide community sanction to the designation of criminal culpability.  I conclude that democracy, and indeed the underlying goals of the criminal justice system, are best served when criminal processes allow forums for dissenting perspectives and juries are allowed to assess both the legal and factual bases of guilt.

September 3, 2010 in Apprendi / Blakely Retroactivity , Blakely Commentary and News, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (30) | TrackBack

Seventh Circuit rejects Second Amendment arguments against § 922(g)(3)

Today through its decision in US v. Yancey, No. 09-1138 (7th Cir. Sept. 3, 2010) (available here), a Seventh Circuit panel provides yet another example of the disinclination of lower courts to extend the reach or applicability of the Supreme Court's Second Amendment work in Heller. Here is the start and end of the per curiam Yancey opinion:

Matthew Yancey pleaded guilty to possessing a firearm as an unlawful user of marijuana but reserved the right to argue on appeal that the offense of conviction, 18 U.S.C. § 922(g)(3), violates the Second Amendment as interpreted in District of Columbia v. Heller, 128 S. Ct. 2783 (2008).  We conclude that the statute is constitutional and affirm Yancey’s conviction....

In sum, we find that Congress acted within constitutional bounds by prohibiting illegal drug users from firearm possession because it is substantially related to the important governmental interest in preventing violent crime.

September 3, 2010 in Second Amendment issues | Permalink | Comments (3) | TrackBack

Split Sixth Circuit rejects habeas appeal for arson defendant serving LWOP

Michigan does not have the death penalty, and thus nobody need worry about whether the defendant who lost his habeas appeal in Babick v. Berghuis, No. 08-1376 (6th Cir. Sept. 3, 2010) (available here), will be wrongfully executed.  Ironically, though, I suspect the very fact that the defendant in Babick is not facing execution could mean nobody (other than the dissenting judge) will worry much about the defendant at all.  Here is the start of the majority opinion in Babick:

At 2 a.m. on September 9, 1995, a house burned down in Battle Creek, Michigan, within minutes after Andrew Babick, Jr. left it.  Two young boys died in the blaze.  A jury in Michigan state court later convicted Babick of one count of arson and two counts of first-degree felony murder.  The state trial court sentenced Babick to two terms of life imprisonment without possibility of parole.  Babick argues here, as he did in the district court, that his convictions were tainted by ineffective assistance of counsel and prosecutorial misconduct.  But Congress has made clear that there are limits to our power to grant habeas relief; and Babick’s claims, for the reasons stated below, lie beyond them.  We therefore affirm the district court’s denial of his petition.

Here is the start of the dissent in Babick:

An egregious mistake has been made in this case. The petitioner, Babick, got convicted of arson on the basis of pure “junk science” in a case the local District Attorney in Battle Creek, Michigan, refused even to bring1 and Magistrate Judge Ellen Carmody below would have reversed in a writ of habeas corpus.  District Judge Wendell Miles reversed Judge Carmody, and we now have before us this strange junk science case brought for undisclosed reasons by an Assistant Attorney General of the State instead of the local District Attorney.  I agree with the local D.A. and Judge Carmody that the case should never have been prosecuted.  The evidence of arson is based on expert testimony inconsistent with the clear standards set out in the bible of arson forensic science, The NFPA (National Fire Protection Association), Guide for Fire and Explosion Investigations 921 (2004 and 1995 eds.).  The case has gotten this far through a combination of the state’s refusal to provide the defense with an arson expert, and defense counsel’s failure to understand fully and explain persuasively the need for such an expert, and the consequent failure of judges and jurors along the way to recognize that the scientific evidence on which the jury based its verdict is bogus.

September 3, 2010 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

US Sentencing Commission releases proposed amendments to implement FSA and final priorities

Though I will certainly need the long weekend to consume and assess and comment on all of the new materials that emerged this week from the US Sentencing Commission, I wanted to spotlight these important new USSC documents ASAP.  So, here are the titles and descriptions of all the new goodies just put out by the US Sentencing Commission (with links to the documents referenced):

Proposed Amendment and Issues for Comment: Fair Sentencing Act of 2010: The Commission is seeking comment on its emergency, temporary proposed amendment and issues for comment implementing the statutory changes regarding crack cocaine offenses and directives regarding drug trafficking offenses generally set forth in the Fair Sentencing Act of 2010 (Pub. L. No. 111–220). The Act was signed into law on August 3, 2010, and requires the Commission to promulgate its emergency, temporary amendment (pursuant to section 21(a) of the Sentencing Reform Act of 1987 (28 U.S.C. § 994 note)) within 90 days, i.e., not later than November 1, 2010. Public comment is due [30 days after publication in the Federal Register].

"Reader-Friendly" Version of Proposed Emergency Temporary Amendment and Issues for Comment: Fair Sentencing Act of 2010: This compilation contains unofficial text of the proposed emergency temporary amendment and issues for comment implementing the statutory changes regarding crack cocaine offenses and directives regarding drug trafficking offenses generally set forth in the Fair Sentencing Act of 2010 (Pub. L. No. 111-220). Official text will appear in an upcoming edition of the Federal Register.

Notice of Final Priorities: In July 2010, the Commission published a notice of possible policy priorities for the amendment cycle ending May 1, 2011. (See 75 Fed. Reg. 41927) After reviewing the public comment received pursuant to the notice of proposed priorities, the Commission has identified its policy priorities for the upcoming amendment cycle and hereby gives notice of these priorities.

September 3, 2010 in Federal Sentencing Guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Race, Class, and Gender, Who Sentences? | Permalink | Comments (6) | TrackBack

"Death Penalty Advocate Is a Challenge for the Defense"

The title of this post is the headline of this notable article in the New York Times reporting on an interesting capital case in Connecticut.  Here are excerpts from the piece:

In the three years since his wife and two daughters were killed at his home in Cheshire, Conn., Dr. William A. Petit Jr. has become perhaps the most passionate and visible advocate for the death penalty in Connecticut.  More than once he has indicated that the ultimate punishment ought to be imposed on the two longtime criminals who are charged with killing his family.

Now, as the trial of one of the men, Steven J. Hayes, is set to begin on Sept. 13, defense lawyers are publicly showing their frustration with Dr. Petit.  It is a tactic that is fraught with danger for them: This is a man, after all, who is often described as enduring unfathomable loss.  Criticism of him has been virtually unheard of since the crime made him the subject of widespread sympathy.  Also, if they publicly rebuke him, they could violate a court order directing them not to comment publicly.

But some say the defense has little choice.  Dr. Petit’s advocacy of capital punishment, experts on the death penalty say, presents as much of a threat to the goal of avoiding that outcome at trial as anything the prosecution is likely to present in court....

In legislative testimony and interviews, Dr. Petit has said that his wife and daughters already received the death penalty at the hands of the two men charged in the 2007 home invasion and that people who commit such crimes “no longer have a right to exist in this society.”

He has responded to reporters’ requests for comments with statements made in front of television cameras assembled outside the courthouse here.  This summer, during one such session, he seemed to acknowledge that he had a broad role in a statewide debate over capital punishment.  He cited a poll showing support for the death penalty and urged “the people of Connecticut to get out and vote” for candidates who favored capital punishment.

In court this week, lawyers for Mr. Hayes (who is to be tried for the killings before Joshua Komisarjevsky, the other defendant) sharply criticized Dr. Petit for holding “daily press conferences” and suggested that he was trying to prejudice the jury.  “I don’t think we can sit here taking a daily battering,” the chief defense lawyer, Thomas J. Ullmann, said during an argument in court.  He threatened to hold his own news conferences to counter Dr. Petit’s, in violation of the order directing the lawyers in the case not to speak about it outside of court.

Dr. Petit has noted publicly that the court order does not direct him to refrain from commenting on the case....

Jurors’ impression of whether the victim’s family members favor execution has been shown to be a major factor in whether a defendant is sentenced to death, lawyers who have tried capital cases said.  United States Supreme Court rulings make it clear that victims’ family members are not permitted to tell jurors that they want execution, in part because of the power of such emotional appeals.

Capital defense lawyers say they are often confronted with victims’ family members calling outside of court for execution.  But several of the lawyers said the unusual place Dr. Petit occupied in Connecticut made his out-of-court comments especially potent....

[S]ome death penalty proponents say Dr. Petit’s unusual role in Connecticut may be worrisome to the defense for an additional reason.  They say crime victims who are pro-death penalty seldom get the level of public attention that he has.

In other cases, when the relatives of murder victims have said the defendants do not deserve death, they have been embraced by defense teams, creating something of a double standard here, said Robert Blecker, a professor at New York Law School who is a nationally known proponent of the death penalty.  “When you have survivors who are against the death penalty,” Professor Blecker said, “the defense is perfectly capable of — and does — parade them in public to call for life.  So why, when you have an articulate survivor who is in favor of the death penalty, does it suddenly become unfair?”

September 3, 2010 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (35) | TrackBack

State judge responds to mom's request for leniency after fratricide

As revealed by this local sentencing article, which is headlined "Mother persuades judge to go easy on son in fatal shooting," a mother's enduring love can sometimes help at sentencing. Here are the details:

Nine months ago, Ruth Nichols lost one son to gunfire and the other to a jail cell while he awaited trial in his younger brother's death. On Thursday, a judge went along with the woman's wishes and showed her surviving son leniency.

Frederick County Circuit Judge G. Edward Dwyer Jr. pointed to Ruth Nichols' request as the key reason he was persuaded to go below the state sentencing guidelines of three to eight years by ordering Allen L. Nichols, 45, to serve 18 months of a 10-year sentence for manslaughter.

Recommending no more than five years, Deputy State's Attorney David R. Callahan also acknowledged the family's fervent support for the defendant despite the Dec. 1 death of Terry J. Nichols, 43, in the family's Knoxville home.

"It's hard enough to lose one," Ruth Nichols said in the courtroom before the hearing. "I need him (Allen Nichols) home. He helps me with things I can't do."

Authorities said witnesses never wavered in their accounts of the argument that erupted between the brothers when Allen Nichols was awakened after Terry Nichols returned home from a night of drinking. "Ruth stated (that) Terry is very loud when he drinks," according to charging documents....

Family members heard Terry Nichols say, "Pull the trigger. I dare you," just before the fatal shot was fired, court documents state. A 911 dispatcher speaking to Ruth Nichols over the phone heard a man in the background saying, "I didn't know the damn thing was (expletive) loaded." Neither brother believed the gun was loaded, Ruth Nichols said.

Before sentence was imposed Thursday, defense attorney Alan L. Winik said Allen Nichols had agreed to waive credit for the nine months he has already spent at the Frederick County Adult Detention Center, meaning his total sentence will be closer to 27 months. "This is a rather unusual case," Winik said. "It is a tragedy linked to the deadly combination of gunpowder and alcohol that has led us to where we are today."

Dwyer authorized work release for Nichols, whose employer has stood behind him since his arrest, Winik said. Allen Nichols supports his mother and an invalid brother. The shooting has put the family in dire straits. Allowing Nichols to work and keeping his sentence limited to the local jail "will allow the preservation of this family who have all had to live with the fact that they have lost a loved one," Winik said.

September 3, 2010 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack

September 2, 2010

California state appeals court finds unconstitutional 84-year prison term for 16-year-old car-jacker

As detailed in this San Francisco Chronicle piece, which is headlined "Teen's 84-year sentence overturned by court," at least one California appeals court has extended the Supreme Court's ruling in Graham to a (long) term-of-years sentence. Here is the start of the press article:

After the Legislature killed a Bay Area lawmaker's bill to give juveniles serving life sentences a chance at future parole, a state appeals court took a step in the other direction Wednesday by overturning the 84-year prison term of a 16-year-old gang member convicted of robbery and carjacking.

The sentence is the practical equivalent of life without possible parole and violates the constitutional ban on cruel and unusual punishment, said the Second District Court of Appeal in Los Angeles. The court told the trial judge to resentence Victor Mendez to a term that would give him a chance to gain his freedom someday if he shows maturity and rehabilitation.

The ruling followed a U.S. Supreme Court decision in May that banned life-without-parole sentences for juveniles convicted of crimes other than homicide. That ruling applied to four youths in California prisons, but did not affect another 250 inmates serving the same sentence for murders committed at ages 16 or 17.

The discussion of Graham starts at page 15 of the full slip opinion in California v. Mendez, No. B217683 (Cal. 2d Dist. App. Sept 1, 2010) (available here).  Here is a snippet:

We disagree with Mendez that his de facto LWOP sentence should be reversed pursuant to the holding in Graham. As the People note, Graham expressly limited its holding to juveniles actually sentenced to LWOP.... Mendez‘s sentence is not technically an LWOP sentence, and therefore not controlled by Graham. We are nevertheless guided by the principles set forth in Graham in evaluating Mendez‘s claim that his sentence is cruel and unusual....

Even without Graham, we would conclude that Mendez‘s sentence is unconstitutional when evaluated under the traditional "proportionality" test used by the federal and state courts when evaluating individual claims that a sentence is cruel and unusual.  Although articulated slightly differently, both standards prohibit punishment that is "grossly disproportionate" to the crime or the individual culpability of the defendant....

In reaching our conclusion that Mendez‘s sentence is the equivalent of LWOP and that it is cruel and unusual punishment, we are mindful of the fact that successful challenges to sentences on the grounds of cruel and unusual punishment are rare.  Nevertheless, we find this to be such a rare case, and we therefore remand the matter to the trial court for reconsideration of Mendez‘s sentence.

September 2, 2010 in Assessing Graham and its aftermath, Graham and Sullivan Eighth Amendment cases, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

Ohio Governor commutes death sentence of Kevin Keith based on innocence concerns

As detailed in this local news report, "Gov. Ted Strickland spared Kevin Keith's life today, concluding that it is "far more likely" he is a murderer than he is not, but there are too many 'real and unanswered questions' to allow him to be executed."  Here is some of the context for the decision:

Keith and his supporters have long proclaimed his innocence.  He sought a full pardon from the governor — even though courts at all levels have affirmed his guilt and the death sentence. Keith's defense team argued that the lack of physical evidence no carpet fibers, DNA or fingerprints on a gun meant the conviction relied on "questionable" testimony from an adult and two children who survived the attack.

The controversial nature of Keith's case attracted support from high-profile individuals and organizations, including John Q. Lewis of the Jones Day law firm of Cleveland who worked on his defense for free, former Republican Attorney General Jim Petro, and the national president of the Innocence Network.

Strickland, a Democrat seeking re-election this fall, set the stage for his clemency decision in an interview with The Dispatch last month in which he said the case "has circumstances that I find troubling." He said his legal staff had been looking into circumstances of the case for weeks.

It was the second time in the last three murder cases set for execution that the governor spared the life of the convicted killer.  He spared the life of Richard Nields in June, but allowed Roderick Davie to be executed in August.

It was also the second time Strickland rebuffed the parole board's recommendation in a capital case. He allowed the execution of Jason Getsy to go forward in August 2009 even though the board voted to spare his life.

Governor Strickland's official statement in support of this clemency decision in available at this link, and it concludes this way:

"It is my view, after a thorough review of the information and evidence available to me at this time, that it is far more likely that Mr. Keith committed these murders than it is likely that he did not.

"Yet, despite the evidence supporting his guilt and the substantial legal review of Mr. Keith's conviction, many legitimate questions have been raised regarding the evidence in support of the conviction and the investigation which led to it.  In particular, Mr. Keith's conviction relied upon the linking of certain eyewitness testimony with certain forensic evidence about which important questions have been raised.  I also find the absence of a full investigation of other credible suspects troubling.

"Clearly, the careful exercise of a governor's executive clemency authority is appropriate in a case like this one, given the real and unanswered questions surrounding the murders for which Mr. Keith was convicted. Mr. Keith still has appellate legal proceedings pending which, in theory, could ultimately result in his conviction being overturned altogether. But the pending legal proceedings may never result in a full reexamination of his case, including an investigation of alternate suspects, by law enforcement authorities and/or the courts. That would be unfortunate — this case is clearly one in which a full, fair analysis of all of the unanswered questions should be considered by a court. Under these circumstances, I cannot allow Mr. Keith to be executed.  I have decided, at this time, to commute Mr. Keith's sentence to life in prison without the possibility of parole.  Should further evidence justify my doing so, I am prepared to review this matter again for possible further action."

September 2, 2010 in Clemency and Pardons, Death Penalty Reforms | Permalink | Comments (17) | TrackBack

Notable Ninth Circuit ruling concerning garbage and the rule of lenity

Though not a sentencing case, I could not resist posting about an interesting split criminal statutory law ruling from the Ninth Circuit today in US v. Millis, No. 09-10134 (9th Cir. Sept. 2, 2010) (available here). The start of the dissent by Judge Bybee highlights the legal issue and should provide a sense for why the case is interesting:

Daniel Millis, motivated by humanitarian concerns, scattered plastic gallon-size water bottles with bright blue caps throughout the Buenos Aires National Wildlife Refuge in southern Arizona. When Millis failed to pick up all of the bottles after Fish and Wildlife Service employees asked him to do so, he was cited for littering on a national wildlife refuge. 50 C.F.R. § 27.94(a).  After a bench trial, a magistrate judge found Millis guilty of the charge, and the district court affirmed his conviction. The majority overturns his conviction on the grounds that the common meaning of the term “garbage” is “sufficiently ambiguous” to require invocation of the rule of lenity.  I believe that the rule of lenity does not apply here because leaving plastic bottles in a wildlife refuge is littering under any ordinary, common meaning of the word.

September 2, 2010 in Offense Characteristics, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

Can and should we try to research sentencing law and policy in actual laboratories?

Especially in the context of criminal justice reform, I love Justice Louis Brandies' notion of state legislatures serving as "laboratories of democracy" for improving national crime and punishment law and policies.  However, the question in the title of this post asks whether actual laboratories might allow us to better understand crime and punishment, and it is inspired by this new paper on SSRN titled "Using Laboratory Experiments to Study Law and Crime." Here is the abstract:

The 19th and 20th centuries produced breakthroughs in physics, chemistry, and the biological sciences. Laboratory research played an important role in the rapid advances made in these fields.  Laboratory research can also contribute progress in the social sciences and, in particular, to law and criminology.  To make this argument, we begin by discussing what laboratory experiments can and cannot do.  We then identify three issues in the criminological and legal literature: why violence is higher in the southern United States than in the North, the relation between the severity of punishment and crime, and the expressive effects of law.  We describe the relevant data from laboratory experiments and discuss how these data complement those gained through other methods.

September 2, 2010 in Data on sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

"Cooperation's Cost"

The title of this post is the title of this great-looking new piece from Professor Miriam Baer. Here is the abstract:

This Article explores the costs and benefits of criminal cooperation, the widespread practice by which prosecutors offer criminal defendants reduced sentences in exchange for their assistance in apprehending other criminals.  On one hand, cooperation increases the likelihood that criminals will be detected and prosecuted successfully.  This is the “Detection Effect” of cooperation, and it has long been cited as the policy’s primary justification.

On the other hand, cooperation also reduces the expected sanction for offenders who believe they can cooperate if caught.  This is the Sanction Effect of cooperation, and it may grow substantially if the government signs up too many cooperators, sentences them too generously, or causes them to become overly optimistic about their chances of receiving a cooperation agreement.

When the government allows the Sanction Effect to grow too large, it undermines one of its key tools for improving deterrence. Indeed, when the Sanction Effect outweighs the Detection Effect, cooperation reduces deterrence, and the government unwittingly encourages more crime.  Since cooperation is itself administratively costly, the policy perversely causes society to pay for additional crime.

This Article reorients the cooperation debate around the fundamental question of whether cooperation deters wrongdoing.  Drawing on economics and behavioral psychology, it provides a framework for better understanding how and when cooperation “works.” Government actors who laud and rely on cooperation must address the fundamental question of whether it actually deters wrongdoing.  To do otherwise, is to leave society vulnerable to cooperation’s greatest cost.

September 2, 2010 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (3) | TrackBack

September 1, 2010

The latest judicial hold-up of executions in California

The state with the largest death row in the US appears to be trying, by may not be likely, to be able to resume executions soon.  At least that's what I take away from this report in the San Jose Mercury News, which is headlined "Judge again puts state efforts to resume executions on hold."  Here are the details:  

California officials are trying to press forward with resuming executions after a hiatus of more than four years, but the state's lethal injection procedures continue to remain stuck in legal limbo.

A Marin County judge on Tuesday put up the latest roadblock to the state's effort to execute its condemned killers, issuing a brief ruling that for now bars prison officials from moving forward immediately with executions.

The order came the same day that state lawyers argued in federal court that nothing should stand in the way of setting execution dates soon for six death row inmates, including David Allen Raley, condemned to die in Santa Clara County for the 1985 murder of a Peninsula high school student and the attempted murder of her friend.

The new legal developments signal that the state is trying to kick-start the death penalty in California, despite repeated setbacks in the state and federal courts that have effectively shuttered San Quentin's death chamber since the January 2006 execution of Clarence Ray Allen.

The California Department of Corrections and Rehabilitation adopted new lethal injection procedures this summer, hoping to resolve state court orders that found the previous rules had been put in place in violation of state regulations, as well as a San Jose federal judge's concerns that the prior lethal injection method risked cruel and unusual executions.

But the new regulations now face new legal challenges. Lawyers for death row inmates filed a lawsuit in Marin County Superior Court, saying they still don't comply with California rules for enacting new regulations. And U.S. District Judge Jeremy Fogel is now evaluating whether he is free to consider if the new lethal injection procedures, and San Quentin's new death chamber, address concerns that inmates may suffer inhumane deaths from the state's three-drug cocktail of lethal drugs....

In court papers filed Tuesday, Attorney General Jerry Brown's lawyers argued that the state "now has presumptively valid regulations for carrying out lethal injections," and is prepared to defend them if they are challenged in the case being heard by Fogel. State lawyers also disclosed plans to ask a judge to set an execution date later this week for Morales, as well as imminent requests for execution dates for five other inmates who have exhausted their legal appeals. That includes Raley, who would be the first inmate from Santa Clara County executed since the state restored the death penalty in 1978.

But with the Marin judge's order, the federal case and those executions may be put back on hold.... "I don't see how they can proceed at this time," said Sara Eisenberg, a San Francisco lawyer who represents death row inmate Mitchell Sims in the lawsuit challenging the most recent version of the lethal injection procedures.

September 1, 2010 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (7) | TrackBack

Notable tussle between federal judge and federal defenders in Pittsburgh

This story from the Pittsburgh Post Gazette, which is headlined "Federal judge may remove himself from public defender cases," reports on an interesting federal criminal justice brouhaha. Here are the basics:

A federal judge today issued an opinion saying that he would disqualify himself from all cases in which the federal public defender's office represents a client before him provided the office shows that it sought permission from each of the 21 defendants involved before it sought that relief from the court.

U.S. District Judge Arthur J. Schwab issued the three-page opinion a day after the public defender's office filed motions asking the judge to disqualify himself from every case it had pending before him.

The motions accuse the judge of being biased against the office, citing as an example his rulings in a case involving Youa Vue, charged with being a felon in possession of a firearm.

However, in his opinion, Judge Schwab strikes back at the PD's office, particularly singling out the attorney on the Vue case as having failed to do her job.

Though he wrote that in his 7-1/2 years on the bench he has been "impressed with the zeal and quality of the representation of the [assistant federal public defenders] and counted them as professional colleagues in our great system of justice," he blamed Elisa Long for allowing Mr. Vue and another client to spend more time in custody than they should have based on the advisory guideline range they faced on their charges....

He said that he will grant the motions to disqualify for all 21 defendants but only if the public defender's office meets face to face with each client and obtains an affidavit from each one saying that they agreed with their attorneys' decisions to file the motions to disqualify before the motions were filed. He gave the office until Sept. 10 to provide the affidavits.

Further, he wrote, that "the court will implement an automatic disqualification for all future criminal cases where a defendant is represented by an attorney from the FPD's Office."

September 1, 2010 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

"N.Y. Judge Vacates Deportation Plea Due to Changing Legal Landscape"

The title of this post is the headline of this piece in the New York Law Journal, which gets started this way:

A judge's warning that a defendant could be subject to deportation if he pleaded guilty to a misdemeanor did not alleviate the ineffectiveness of his counsel under a new standard expressed by the U.S. Supreme Court, the judge ruled in vacating his prior acceptance of the plea.

Brooklyn Acting Supreme Court Justice Joseph K. McKay observed that the U.S. Supreme Court's recent decision in Padilla v. Kentucky, 130 S. Ct. 1473, had altered the legal landscape since he had accepted Jose Garcia's plea 2 1/2 years ago.

"[W]here, as here, defendant is found in fact to have been misled by bad advice from a so-called retained specialist and by a lack of advice from his defense attorney, the Court's general warning will not automatically cure counsel's failure nor erase the consequent prejudice," McKay wrote in People v. Garcia, 4050-06.

September 1, 2010 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Second Circuit weighs in thoughtfully on post-Booker ex post facto issues

Today in a relatively short opinion in US v. Ortiz, No. 08-2648 (2d Cir. Sept. 1, 2010) (available here), a Second Circuit panel addresses the (circuit-splitting) issue of whether the ex post facto clause limits application of the latest version of the federal sentencing guidelines in a post-Booker advisory sentencing world.  Here is the start of the Ortiz opinion:

This appeal primarily presents the issue of whether, and under what circumstances, a more onerous guideline, issued by the United States Sentencing Commission after the date of an offense, renders a sentence imposed under the advisory Guidelines regime in violation of the Ex Post Facto Clause.  The issue arises on an appeal by Defendant-Appellant Eric Ortiz from the May 27, 2008, judgment of the District Court for the Eastern District of New York (Dora L. Irizarry, District Judge).  We conclude that such a sentence can violate the Clause, but that the Clause was not violated in the circumstances of this case.  We therefore affirm.

A few related posts on post-Booker ex post issues:

September 1, 2010 in Booker in the Circuits, Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack

Is community service really a punishment? Should it be ordered more?

The questions in the title of this post, which I asked my 1L students yesterday, are worth some collective reflection in light of this notable new Slate column headlined "Riches to Rags: What's with all the celebrities serving community service? Do they really help anyone?". Here are excerpts:

The modern concept of community service as a punishment began in Great Britain in the late 1960s and has become increasingly popular with judges who find they can be more flexible and humane in punishing offenders unlikely to commit another crime. Those guilty of offenses like shoplifting, writing bad checks, possessing small amounts of illegal drugs, or hurling cell phones, are required to work a certain number of hours for the good of the community, usually in a local nonprofit or government facility. (The judges' rule of thumb: Six hours of work equals one day in jail.)...

Whether the work itself is useful or not, this kind of sentencing is certainly helpful to the criminal justice system in a time of budget deficits and overcrowded prisons. (We have more people locked up than any other nation and lead the world in incarceration rates at 751 people in prison or jail for every 100,000 in the population. California may have to release prisoners.)

Community service is practical as well as humane. It saves court time because few of these cases go to trial. The charges are generally dismissed once community service is done and the fine paid. The state saves the high cost of a prisoner's daily care.

Is community service helpful to the community by making offenders less likely to commit crimes in the future? Sentencing experts point to the good outcomes for young offenders, where time in jail would very likely have made them more dangerous.

We'd like to believe older offenders can be transformed by serving their communities, but the few studies on the subject are inconclusive. There's not much evidence that such sentencing significantly reduces recidivism....

Recent examples of celeb community service sentencing bring up the tension that runs throughout our justice system. Is it fair? Not really: The moneyed and better-educated defendant almost invariably does better. A Houston study found whites there were more likely to be assigned community service sentences than blacks.

People with money can hire a skilled lawyer likely to convince a judge that community service is appropriate. In fact, it's often the defense attorney who proposes the form of service.

In the case of a sports star, a team and an agent have a huge investment in keeping the offender playing, not to mention maintaining or rehabilitating his or her reputation. When basketball player DeShawn Stevenson fulfills his community service at a camp for elite high-school ball players (along with two years' probation and a $1,100 fine) after being sentenced for statutory rape, it looks like something he would have probably wanted to do anyway.

Same goes for other entertainers. After his airport parking violation led to drug and gun charges, rapper Snoop Dogg spent half of his 800 hours of community service with his Snoop Youth Football League team (complete with a Snooper Bowl).

In some cases, the suggested service looks less like punishment than career enrichment. The lawyer for actor Charlie Sheen, who was charged with assaulting his wife with a switch blade, initially suggested that the actor spend a month serving the community as a theater intern with Theatre Aspen. Sheen ended up going to drug rehabilitation (as did his wife), instead of prison.

Offenders can go too far with their ideas about the right kind of service. A California lawyer guilty of conspiracy sought community-service credit for teaching a law school course to be called "Regulation of Free Market Capitalism: Are We Failing?" The judge rejected the idea, saying it was not what he had envisioned.

September 1, 2010 in Celebrity sentencings, Criminal Sentences Alternatives, White-collar sentencing | Permalink | Comments (6) | TrackBack

"Prison is too good for Blago"

The title of this post is the headline of this column by Phil Luciano in the Peoria Journal Star.  Here are some excerpts:

How would you like to see Rod Blagojevich punished?  I'd like to see him do something that involves hard and demeaning work. You know, like real punishment....

I get my prison peek courtesy of a pal of mine, "Screamin'."  He recently got out of the federal system after serving three years for fraud.  He spent a good amount of cell time writing me letters about the relative ease of federal prison camps.  Now that he is out and on the straight and narrow, he still is amazed at how little punishment is involved behind bars at minimum-security prison -- and why many folks call it "Club Fed."

That's likely where Blago will end up.  Remember, regardless of the second trial, he already has been convicted of lying to the FBI.  For that, a source tells me, he likely will get a year or two in prison.

He has no prior record, so he will get a minimum-security assignment.  Unlike Pekin's medium-security facility, minimum-security prisons have no walls.  It's kind of like living at a college dorm, Screamin' says.

Screamin' says Blago will spend most of his days doing light labor, such as upkeeping the library or cutting grass.  For that, he'll get around 16 cents an hour, which means about $15 a month.  Inmates get to spend earnings on treats at the commissary.

But Blago will have opportunities to make more money or earn favors.  As an attorney, he can write motions for other prisoners. In exchange, he could get packets of tuna -- a favorite at prison camps, because it tastes most like real food, Screamin' says.  Or, Blago could trade legal work for favors, such as laundry work.

During down time -- and there is plenty of down time -- Blago likely will consort with other politicians and businessmen.  They often walk around the outdoor track, not so much for exercise but to gossip and scheme.  Sure, Blagojevich is a big jogger, but he'll likely be more attuned to the deals inmates concoct regarding life on the outside after they do their time....

Many [inmates] do what they love on the outside: gamble.  Bookmaking is immensely popular, with wives and girlfriends taking care of settling wagers on the outside. Screamin' would see inmates lose thousands of dollars per sports season. "It's crazy," he says.  "A lot of money."

Of course, get caught and get in trouble.  You might get shipped off to "the hole."  Or you could get moved to a stiffer prison, where you can't get away so easily with such shenanigans.  All in all, though, Screamin' found his stay rather uneventful.  And that's why I hate to see Blagojevich go away to federal prison.

U.S. taxpayers spend more than $24,000 a year to house each prisoner.  And there are more than 200,000 inmates in the federal system. Behind bars,  Blago gets easy jobs and a chance to network with other pols and bigwigs.  That's hardly what I call punishment.  So maybe it's time to get creative.

Judges sometimes opt for alternate sentences nowadays.  In Ohio, a man who ran from police was forced to jog around a jail every day.  In Texas, a woman who tried to weasel Hurricane Katrina rebuild money had to clean houses.  In California, a beer thief had to wear a T-shirt declaring his crime.  But those were state sentences.  Federal sentencing guidelines don't allow anything but incarceration.

Yet wouldn't it make more sense to find a different way to handle Blago and others like him?  A way that not only makes him pay his debt to society but takes the taxpayer off the hook?

Make him work a 9-to-5 minimum-wage job -- fast food, retail or whatever -- so he can learn how the little guy squeaks by while earning money to help support his family.  At night, he would have to stay at home -- no restaurants or fun until his term is over.

Weekends, though, he would do very visible public service. Picking up trash on the highways, cleaning state Dumpsters, shoveling state-owned sidewalks -- anything involving sweat and humility.  And the aggrieved public could watch -- perhaps with knowing smiles and pointing fingers -- what happens when a government official brazenly goes bad.

Informed readers should know that shaming sanctions and other prison alternatives in fact are possible in the federal sentencing system, though truly creative sentences are quite rare.  Do others agree with this columnist that Blago is a good candidate for some creative sentencing?

September 1, 2010 in Celebrity sentencings, Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (7) | TrackBack

August 31, 2010

Wondering about the state and fate of the federal death penalty

A high-profile federal death penalty case that concluded earlier this week in Detroit, which is covered in this local piece headlined "Legal experts say no death penalty is no surprise: Doubtful Detroit jurors didn't put killer in the 'worst of the worst' category," got me to thinking about the current state and future fate of the federal death penalty.

Notably, there has been only three federal execution in the modern death penalty era, and none since 2003.  However, federal death row continues to grow, having roughly doubled in size over the last decade.  (Info at DPIC here and here.)

August 31, 2010 in Death Penalty Reforms | Permalink | Comments (6) | TrackBack